UCD 


UNWER 


iiAH 


•: 

THE  PRISONER  AT  THE  BAR 


COPYRIGHT,  1906, 1908,  BY 
CHARLES  SCRIBNER'S  SONS 

Printed  m  the  United  States  •£  America 


To 
ETHEL  KISSAM  TRAIN 


PREFACE 

THE  prisoner  at  the  bar  is  a  figure  little  known  to 
most  of  us.  The  newspapers  keep  us  steadily  in- 
formed as  to  the  doings  of  all  sorts  of  criminals  up 
to  the  time  of  their  capture,  and  prison  literature  is 
abundant,  but  just  how  the  criminal  becomes  a  con- 
vict is  not  a  matter  of  common  knowledge.  This, 
however,  does  not  prevent  the  ordinary  citizen  from 
expressing  pronounced  and,  frequently,  vociferous 
opinions  upon  our  methods  of  administering  crim- 
inal justice,  in  the  same  way  that  he  stands  ready  at 
any  time  to  criticise  the  Darwinian  theory,  free  trade 
or  foreign  missions.  Full  knowledge  of  any  subject 
is  inevitably  an  impediment  to  forcible  asseveration. 
Generalities  are  easy  to  formulate  and  difficult  to  dis- 
prove. The  man  who  sits  with  his  feet  up  and  his 
chair  tilted  back  in  the  "drummer's"  hotel  will  in- 
form you  that  there  is  no  such  thing  as  criminal  jus- 
tice and  that  the  whole  judiciary,  state  and  federal, 
is  "owned"  or  can  be  bought;  you  yourself  doubt- 
less believe  that  the  jury  system  is  a  failure  and  suc- 
cessfully evade  service  upon  it;  while  your  neighbor 
is  firmly  convinced  that  prosecutors  secure  their  posi- 
tions by  reason  of  their  similarity  to  bloodhounds  and 
retain  them  by  virtue  of  the  same  token. 

The  only  information  available  to  most  people  on 
this  exceedingly  important  subject  is  that  offered  by 

ix 


x  PREFACE 

the  press,  and  the  press  (save  in  the  case  of  sensa- 
tional murder  trials)  usually  confines  itself  to  dra- 
matic accounts  of  the  arrest  of  the  more  picturesque 
sort  of  criminals,  with  lurid  descriptions  of  their  of- 
fences. The  report  or  " story"  concludes  with  the 
statement  that  "Detective-Sergeant  Smith  immedi- 
ately arraigned  his  prisoner  (Robinson)  before  Magis- 
trate Jones,  who  committed  the  latter  to  jail  and  ad- 
journed the  hearing  until  the  following  Tuesday. " 
This  ends  the  matter,  and  the  gruesome  or  ingenious 
details  of  the  crime  having  been  served  up  to  satisfy 
the  public  appetite,  and  the  offender  having  been 
locked  up,  there  is  nothing,  from  the  reporter's  point 
of  view,  any  longer  in  the  story.  We  never  hear  of 
Robinson  again  unless  he  happens  to  be  the  president 
of  a  bank  or  a  degenerate  millionaire.  He  is  "dis- 
posed of,"  as  they  say  in  the  criminal  reports,  with- 
out exciting  anybody's  interest,  and  his  conviction  or 
acquittal  is  not  attended  by  newspaper  comment. 

If  on  the  other  hand  the  case  be  one  of  sensational 
interest  we  are  treated  daily  to  long  histories  of  the 
defendant  and  his  family,  illustrated  by  grotesque 
reproductions  from  the  ancestral  photograph  album. 
We  become  familiar  with  what  he  eats  and  drinks, 
I  the  number  of  cigars  he  smokes  and  his  favorite  actor 
and  author.  The  case  consumes  months  in  prepara- 
tion and  its  trial  occupies  weeks.  A  battalion  of 
"special"  talesmen  marches  to  the  court  house,— 
"the  standing  army  of  the  gibbet,"  as  one  of  my  pro- 
fessional brethren  (on  the  other  side  of  the  bar)  calls 
them.  As  each  of  the  twelve  is  chosen  his  physiog- 


PREFACE  xi 

nomy  appears  on  the  front  page  of  an  evening  edi- 
tion, a  tear  dropping  from  his  eye  or  his  jaws  locked 
in  grim  determination,  in  accordance  with  the  senti- 
ments of  the  editor  or  the  policy  of  the  owner.  Then 
follows  a  pictorial  procession  of  witnesses.  The 
prosecutor  makes  a  full-page  address  to  the  public, 
in  the  centre  of  which  appears  his  portrait,  heroic 
size,  arm  sawing  the  air. 

11 1  am  innocent!"  cries  a  purple  defendant,  in 
green  letters. 

* 'Murderer!"  hisses  a  magenta  prosecutor,  in  char- 
acters of  vermilion. 

Finally  the  whole  performance  comes  to  an  end 
without  anybody  having  much  of  an  idea  of  what 
has  actually  taken  place,  and  leaving  on  the  public 
mind  an  entirely  false  and  distorted  conception  of 
what  a  criminal  trial  is  like. 

The  object  of  this  book  is  to  correct  the  very  gen- 
eral erroneous  impression  as  to  certain  phases  of 
criminal  justice,  and  to  give  a  concrete  idea  of  its 
actual  administration  in  large  cities  in  ordinary  cases, 
—cases  quite  as  important  to  the  defendants  and  to 
the  public  as  those  which  attract  widespread  atten- 
tion. 

The  millionaire  embezzler  and  the  pickpocket  are 
tried  before  the  same  judge  and  the  same  jury,  and 
the  same  system  suffices  to  determine  the  guilt  or 
innocence  of  the  boy  who  has  broken  into  a  cigar 
store  and  the  actress  who  has  murdered  her  lover. 
It  is  in  crowded  cities,  like  New  York,  con  taming  an 
excessive  foreign-born  population,  that  the  system 


xii  PREFACE 

meets  with  its  severest  test,  and  if  tried  and  not 
found  wanting  under  these  conditions  it  can  fairly  be 
said  to  have  demonstrated  its  practical  efficiency  and 
stability.  Has  the  jury  system  broken  down?  Are 
prosecutors  habitually  vindictive  and  over-zealous? 
It  is  the  hope  of  the  writer  that  the  chapters  which 
follow  may  afford  some  data  to  assist  the  reader  in 
formulating  an  intelligent  opinion  upon  these  and 
kindred  subjects.  It  is  needless  to  say  that  no  at- 
tempt is  made  to  discuss  police  corruption,  the  in- 
crease or  decrease  of  crime,  or  penology  in  general, 
and  the  writer  has  confined  himself  strictly  to  that 
period  of  the  criminal's  history  described  in  the  title 
as  "AT  THE  BAR." 

To  my  official  chief,  William  Travers  Jerome,  and 
to  my  associates,  Charles  Cooper  Nott,  Charles  Al- 
bert Perkins,  and  Nathan  A.  Smyth,  I  desire  to 
acknowledge  my  gratitude  for  their  advice  and  as- 
sistance; to  my  friend,  Leonard  E.  Opdycke,  who  sug- 
gested the  collection  and  correlating  of  these  chap- 
ters, I  wish  to  express  my  thanks  for  his  constant 
interest  and  encouragement;  but  my  debt  to  these  is 
naught  compared  to  that  which  I  owe  to  her  to  whom 
this  book  is  dedicated,  who,  with  unsparing  pains, 
has  read,  re-read  and  revised  these  chapters  in  manu- 
script, galley  and  page  and  who  has  united  the  func- 
tions of  critic,  censor  and  collaborator  with  a  patience, 
good  humor,  and  discretion  which  make  writing  a  joy 
and  proof-reading  a  vacation. 

ARTHUR  TBAIN. 

Bar  Harbor,  Me., 
Sept.  i,  1906. 


CONTENTS 


INTRODUCTION.    BY  PROF.  JoHflI.  WIGMORE   .     .  xv 

CHAPTER 

I.  WHAT  Is  CRIME?  ........  3 

II.  WHO  ARE  THE  REAL  CRIMINALS     ...  26 

III.  THE  ARREST     .........  41 

IV.  THE  POLICE  COURT    .......  55 

V.  THE  TRIAL  OF  MISDEMEANORS  ....  81 

VI.  THE  GRAND  JURY       .......  103 

VII.  THE  LAW'S  DELAYS    .......  131 

VIII.  RED  TAPE    ..........  166 

IX.  THE  TRIAL  OF  FELONIES       .....  191 

X.  THE  JUDGE  ..........  229 

XI.  THE  JURY    ..........  263 

XII.  THE  WITNESS   .........  288 

XIII.  THE  VERDICT    .........  310 

XIV.  THE  SENTENCE  .........  335 


Xlll 


INTRODUCTION 
BY  PROF.  JOHN  H.  WIGMORE 

DEAN   OF  THE   LAW   SCHOOL   OF   NORTHWESTERN   UNIVERSITY 

MR.  TRAIN'S  book,  "The  Prisoner  at  the  Bar,"  as 
an  entertaining  and  vivid  picture  of  the  criminal  pro- 
cedure of  to-day,  and  a  repertory  of  practical  experi- 
ence and  serious  discussion  of  present-day  problems 
in  the  administration  of  justice,  is,  in  my  opinion,  both 
unique  and  invaluable.  I  know  of  no  other  book 
which  so  satisfyingly  fills  an  important  but  empty 
place  in  a  modern  field.  At  one  extreme  stand  the 
scientific  psycho-criminologists,  usefully  investigat- 
ing and  reflecting,  but  commonly  severed  from  the 
practical  treatment  of  any  branch  of  the  subject 
until  the  prison  doors  are  reached.  At  another  ex- 
treme are  the  professional  lawyers,  skilled  in  the 
technique  of  present  procedure,  but  too  much  tied 
by  precedent  to  take  anything  but  a  narrow,  back- 
ward-looking view.  Off  in  a  third  corner  are  the 
economists,  sociologists,  physicians,  and  serious  citi- 
zens in  general,  who  notice  that  some  things  are  go- 
ing wrong,  but  have  no  accurate  conception  of  what 
is  actually  seen  and  done  every  day  in  courts  of  jus- 
tice; these  good  people  run  the  risk  of  favoring  im- 
practicable fads  or  impossible  theories. 

Now  comes  Mr.  Train's  book,  casting  in  the  centre 
of  the  field  an  illumination  useful  to  all  parties.  It 

XV 


xvi  INTRODUCTION 

enlightens  the  serious  citizen  as  to  the  actual  experi- 
ences of  our  criminal  justice,  and  shows  him  the  in- 
exorable facts  that  must  be  reckoned  with  in  any 
new  proposals.  The  professional  lawyer  is  stimu- 
lated to  think  over  the  large  tendencies  involved  in 
his  daily  work,  to  realize  that  all  is  not  necessarily 
for  the  best,  and  to  join  and  help  with  his  skill.  The 
scientific  criminologist  is  warned  against  trusting  too 
much  to  the  cobwebs  of  his  ideal  theories,  or  adhering 
too  implicitly  to  the  Lombrosan  school  or  other  for- 
eign propaganda,  and  is  forced  to  keep  in  mind  a  liv- 
ing picture  of  the  practical  needs  of  American  jus- 
tice. 

I  do  not  hesitate  to  say  that  every  thoughtful 
American  citizen  ought  to  know  all  the  things  that 
are  told  in  this  book;  and  if  he  did,  and  as  soon  as 
he  did,  we  might  then  begin  to  work  with  encourage- 
ment to  accomplish  in  a  fashion  truly  practical  as 
well  as  scientific  the  needed  improvement  in  our 
criminal  justice.  Such  effort  is  likely  to  be  hopeless 
until  people  come  to  realize  what  the  facts  are.  Judg- 
ing by  my  own  case,  I  feel  that  most  people  will  never 
really  know  and  appreciate  the  facts  unless  they  read 
Mr.  Train's  book. 


THE  PRISONER  AT  THE   BAR 


CHAPTER  I 

WHAT  IS  CRIME? 

A  CRIME  is  any  act  or  omission  to  act  pun- 
ishable as  such  by  law.  It  is  difficult,  if  not 
impossible,  to  devise  any  closer  definition.  Speak- 
ing broadly,  crimes  are  certain  acts,  usually 
wrongful,  which  are  regarded  as  sufficiently  dan- 
gerous or  harmful  to  society  to  be  forbidden 
under  pain  of  punishment.  The  general  relation 
of  crimes  to  wrongs  as  a  whole  is  sometimes  illus- 
trated by  a  circle  having  two  much  smaller  cir- 
cles within  it.  The  outer  circle  represents  wrong- 
ful acts  in  the  aggregate;  the  second,  wrongful 
acts  held  by  law  to  be  torts,  that  is  to  say,  infrac- 
tions of  private  rights  for  which  redress  may  be 
sought  in  the  civil  courts,  and  the  smallest  or 
inner  circle,  acts  held  to  be  so  injurious  to  the  pub- 
lic as  to  be  punishable  as  crimes. 

This  does  well  enough  for  the  purpose  of  illus- 
trating the  relative  proportion  of  crimes  to  torts 
or  wrongful  acts  in  general,  and,  if  a  tiny  dot  be 
placed  in  the  centre  of  the  bull's-eye  to  represent 
those  crimes  which  are  actually  punished,  one  gets 

3 


The  Prisoner  at  the  Bar 

an  excellent  idea  of  how  infinitely  small  a  number 
of  these  serve  to  keep  the  whole  social  fabric  in 
order  and  sustain  the  majesty  of  the  law.  But  the 
inference  might  naturally  be  drawn  that  whatever 
was  a  crime  must  also  be  a  tort  or  at  least  a  wrong, 
which,  while  true  in  the  majority  of  instances,  is 
not  necessarily  the  case  in  all.  In  a  certain  sense 
crimes  are  always  wrongs  or,  at  least,  wrong,  but 


only  in  the  sense  of  being  infractions  of  law  are 
they  always  wrongs  or  wrong. 

The  word  wrong  being  the  antithesis  of  the 


What  is  Crime? 

word  right,  and  carrying  with  it  generally  some 
ethical  or  moral  significance,  will  vary  in  its  mean- 
ing according  to  the  ideas  of  the  individual  who 
makes  use  of  it.  Indeed,  it  is  conceivable  that  the 
only  really  right  thing  to  do  under  certain  circum- 
stances would  be  to  commit  an  act  designated  by 
law  as  a  crime.  So,  conversely,  while  a  wrong 
viewed  as  an  infraction  of  the  laws  of  God  is  a 
sin,  that  which  is  universally  held  sinful  is  by  no 
means  always  a  crime.  Speaking  less  broadly, 
a  wrong  is  an  infraction  of  a  right  belonging  to 
another,  which  he  derives  from  the  law  govern- 
ing the  society  of  which  he  is  a  member.  Many 
wrongs  are  such  that  he  may  sue  and  obtain 
redress  therefor  in  the  courts.  But  it  by  no 
means  follows  that  every  crime  involves  the  in- 
fraction of  a  private  right  or  the  commission  of  a 
tort.  Thus  "perjury"  and  most  crimes  against 
the  State  are  not  torts  at  all.  It  will  thus  be  seen 
that  no  accurate  definition  of  a  crime  can  be  given 
save  that  it  is  an  act  or  omission  which  the  State 
punishes  as  such,  and  that  technically  the  word 
carries  with  it  no  imputation  or  implication  of 
sin,  vice,  iniquity,  or  in  a  broad  sense  even  of 
wrong.  The  act  may  or  may  not  be  repugnant 
to  our  ideas  of  right.  Numerically  considered, 
only  a  minority  of  crimes  have  any  ethical  signifi- 
cance whatever,  the  majority  being  designated  by 

5 


The  Prisoner  at  the  Bar 

the  law  itself  as  mala  prohibita,  rather  than  mala 
in  se. 

It  is  the  duty  of  a  prosecutor  to  see  that  infrac- 
tions of  the  criminal  law  are  punished  and  to  rep- 
resent the  public  in  all  proceedings  had  for  that 
purpose,  but,  in  view  of  what  has  just  been  said, 
it  will  be  observed  that  his  duties  do  not  neces- 
sarily involve  familiarity  with  vice,  violence  or 
even  sin.  The  crimes  he  is  called  upon  to  prose- 
cute may  be  disgusting,  depraved  and  wicked,  or 
they  may  be,  and  frequently  are,  interesting,  in- 
genious, amusing  or,  possibly  (though  not  prob- 
ably), commendable.  For  example,  a  man  who 
chastises  the  foul  slanderer  of  a  young  woman's 
character  may  have  technically  committed  an  as- 
sault of  high  degree,  yet  if  he  does  so  in  the 
proper  spirit,  in  a  suitable  place,  and  makes  the 
offender  smart  sufficiently,  he  deserves  the  thanks 
and  congratulations  of  all  decent  men  and  honest 
women.  Yet,  indubitably,  he  has  committed  a 
crime,  although,  thanks  to  our  still  lingering  spirit 
of  chivalry,  he  would  never  be  stamped  by  any 
jury  as  a  criminal. 

A  prosecutor  is  frequently  asked  if  he  does  not 
find  that  his  experience  has  a  "hardening"  effect. 

"Why  should  it"  he  might  fairly  reply.  "I  have 
to  do  with  criminals,  it  is  true,  but  the  criminals 
as  a  rule  are  little  or  no  worse  than  the  classes  of 

6 


What  is  Crime? 

people  outside  from  which  they  have  been  drawn. 
Their  arrest  and  conviction  are  largely  due  to 
accidental  causes,  such  as  weak  heads,  warm 
hearts,  quick  temper,  ignorance,  foolishness  or 
drunkenness.  We  see  all  of  these  characteristics 
in  our  immediate  associates.  A  great  many  con- 
victed persons  have  done  acts  which  are  not  wrong 
at  all,  but  are  merely  forbidden.  Even  where 
their  acts  are  really  wrong  it  is  generally  the 
stupid,  the  unfortunate,  or  the  less  skilful  who  are 
caught.  For  every  rogue  in  jail  there  are  at  least 
ten  thousand  at  large.  The  ones  who  escape  are 
wiser  and  very  likely  meaner.  Last,  but  not  least, 
a  very  great  number  of  the  most  despicable, 
wicked,  and  harmful  deeds  that  can  be  committed 
are  not  crimes  at  all.  The  fact  that  a  man  is  a 
criminal  argues  nothing  at  all  against  his  general 
decency,  and  when  I  meet  a  convict  I  assume,  and 
generally  assume  correctly,  that  to  most  intents 
and  purposes  he  is  a  gentleman.  The  code  which 
puts  one  man  in  stripes  and  allows  another  to  ride 
in  an  automobile  is  purely  artificial,  and  strictly 
speaking  proves  not  a  whit  which  is  the  better 


man." 


Now  while  such  an  answer  might  seem  frivo- 
lous enough  to  the  lay  reader,  it  would  neverthe- 
less be  substantially  true.  Your  criminal,  that  is 
to  say,  strictly,  the  law-breaker  who  is  brought 

7 


The  Prisoner  at  the  Bar 

to  book  for  his  offence,  is  very  likely  a  pretty 
good  sort  of  fellow  as  fellows  go.  If  he  has  been 
guilty  merely  of  an  act  which  is  prohibited,  not 
because  of  its  inherent  wrong,  but  simply  on 
grounds  of  public  policy — malum  prohibitum — r 
he  is  probably  as  good  as  anybody.  His  offence 
may  be  due  to  ignorance  or  accident.  Assuming 
that  his  crime  be  one  which  would  seem  to  involve 
moral  turpitude — malum  in  se — there  are  very 
likely  mitigating  circumstances  which  render  his 
offence,  if  not  excusable,  at  least  less  reprehen- 
sible than  would  appear  at  first  glance. 

Crimes  bear  no  absolute  relation  to  one  an- 
other. A  murderer  may  or  may  not  be  worse 
than  a  thief, — and  either  may  be  better  than  his 
accuser.  The  actual  danger  of  any  particular 
offender  to  the  community  lies  not  so  much  in  the 
kind  or  degree  of  crime  which  he  may  have  com- 
mitted as  in  the  state  of  his  mind.  Even  the  crim- 
inals who  are  really  criminal,  in  the  sense  that 
they  have  a  systematic  intention  of  defying  the 
law  and  preying  upon  society,  are  generally  not 
criminal  in  all  directions,  but  usually  only  in  one, 
so  that  taken  upon  their  unprofessional  side  they 
present  the  same  characteristics  as  ordinary  and, 
roughly  speaking,  law-abiding  citizens.  The  bank 
robber  usually  is  a  bank  robber  and  nothing  more. 
He  specializes  in  that  one  pursuit.  It  is  his  voca- 

8 


What  is  Crime? 

tion  and  his  joy.  He  prides  himself  orf  the 
artistic  manner  in  which  he  does  his  work.  He 
would  scorn  to  steal  your  watch  and  is  a  man  of 
honor  outside  *of  bank-breaking  hours, — "Honor 
among  thieves."  Often  enough  he  is  a  model 
husband  and  father.  So,  too,  may  be  your  forger, 
gambler,  swindler,  burglar,  highwayman,  or  thief, 
— any  in  fact  except  the  real  moral  pervert;  and 
of  course  murder  is  entirely  compatible  on  occa- 
sion with  a  noble,  dignified  and  generous  char- 
acter. "There  is  nothing  essentially  incongruous 
between  crime  and  culture."  The  prosecutor 
who  begins  by  loathing  and  despising  the  man  sit- 
ting at  the  bar  may  end  by  having  a  sincere  ad- 
miration for  his  intellect,  character  or  capabili- 
ties. This  by  way  of  defence  to  crime  in  general. 
Our  forefathers  contented  themselves  with  a 
rough  distinction  between  crimes  as  mala  pro- 
hibita  and  mala  in  se.  When  they  sought  to 
classify  criminal  acts  under  this  arrangement  they 
divided  them  accordingly  as  the  offence  carried 
or  did  not  carry  with  it  a  suggestion  of  moral 
turpitude.  Broadly  speaking,  all  felonies  were 
and  are  regarded  as  mala  in  se.  Murder,  arson, 
burglary,  theft,  etc.,  in  general  indubitably  imply 
a  depraved  mind,  while  infractions  of  Sunday 
observance  laws  or  of  statutes  governing  the  trade 

9 


The  Prisoner  at  the  Bar 

in  liquor  do  not.    Yet  it  must  be  perfectly  clear 
that  any  such  distinction  is  inconclusive. 

There  can  be  no  general  rule  based  merely  on 
the  name  or  kind  of  crime  committed  which  is 
going  to  tell  us  which  offender  is  really  the  worst. 
A  misdemeanor  may  be  very  much  more  heinous 
than  a  felony.  The  adulterator  of  drugs  or  the 
employer  of  illegal  child  labor  may  well  be  re- 
garded as  vastly  more  reprehensible  than  the 
tramp  who  steals  part  of  the  family  wash.  So 
far  as  that  goes  there  are  an  alarming  multi- 
tude of  acts  and  omissions  not  forbidden  by 
statute  or  classed  as  crimes  which  are  to  all  in- 
tents and  purposes  fully  as  criminal  as  those 
designated  as  such  by  law.  This  is  the  inevitable 
result  of  the  fact  that  crimes  are  not  crimes 
merely  because  they  are  wrong,  but  because  the 
State  has  enjoined  them.  For  example,  to  push 
a  blind  man  over  the  edge  of  a  cliff  so  that  he  is 
killed  upon  the  rocks  below  is  murder,  but  to  per- 
mit him  to  walk  over  it,  although  by  stretching 
out  your  hand  you  might  prevent  him,  is  no  crime 
at  all.  It  is  a  crime  to  defame  a  woman's  char- 
acter if  you  write  your  accusation  upon  a  slip  of 
paper  and  pass  it  to  another,  but  it  is  no  crime  in 
New  York  State  to  arise  in  a  crowded  lecture  hall 
and  ruin  her  forever  by  word  of  mouth.  It  is  a 
crime  to  steal  a  banana  off  a  fruit-stand,  but  it  is 

10 


What  is  Crime? 

no  crime  to  borrow  ten  thousand  dollars  from  a 
man  whose  entire  fortune  it  is,  although  you  have 
no  expectation  of  returning  it.  You  can  be  a 
swindler  all  your  life — the  meanest  sort  of  a  mean 
swindler,  but  there  is  no  crime  of  being  a  swindler 
or  of  being  a  mean  man.  It  is  a  crime  to  ruin  a 
girl  of  seventeen  years  and  eleven  months,  but 
not  to  ruin  a  girl  of  eighteen.  The  "age  of  con- 
sent" varies  in  the  different  States.  It  is  a  crime 
to  obtain  a  dollar  by  means  of  a  false  statement 
as  to  a  past  or  existing  fact,  but  it  is  no  crime  to 
obtain  as  much  money  as  you  can  by  any  other 
sort  of  a  lie.  Lying  is  not  a  crime,  but  lying  under 
oath  is  a  crime, — provided  it  be  done  in  a  legal 
proceeding  and  relates  to  a  material  matter.  The 
learned  jurists  habitually  disagree  as  to  what  is 
material  and  what  is  not. 

Even  when  the  acts  to  be  contrasted  are  all 
crimes  there  is  no  way  of  actually  discriminating 
between  them  except  by  carefully  scrutinizing  the 
circumstances  of  each.  The  so-called  "degrees" 
mean  little  or  nothing.  If  you  steal  four  hundred 
and  ninety-nine  dollars  out  of  a  man's  safe  in  the 
daytime  it  is  grand  larceny  in  the  second  degree. 
If  you  pick  the  same  man's  pocket  of  a  subway 
ticket  after  sunset  it  is  grand  larceny  in  the  first 
degree.  You  may  get  five  years  in  the  first  in- 
stance and  ten  in  the  second.  If  you  steal  twenty- 

II 


The  Prisoner  at  the  Bar 

five  dollars  out  of  a  bureau  drawer  you  commit 
petty  larceny  and  may  be  sent  to  prison  for  only 
one  year. 

If  the  degree  of  any  particular  crime  of  which 
a  defendant  is  found  guilty  is  no  index  to  his  real 
criminality  or  of  his  danger  to  society,  still  less  is 
the  name  of  the  crime  he  has  committed  an  index 
to  his  moral  character,  save  in  the  case  of  certain 
offences  which  it  is  not  necessary  to  enumerate. 
Most  men  charged  with  homicide  are  indicted  for 
murder  in  the  first  degree.  This  may  be  a  wise 
course  for  the  grand  jury  to  pursue  in  view  of  the 
additional  evidence  which  often  comes  to  light 
during  a  trial.  But  it  frequently  is  discovered 
before  the  case  goes  to  the  jury  that  in  point  of 
fact  the  killing  was  in  hot  blood  and  under  cir- 
cumstances which  evince  no  great  moral  turpitude 
in  the  slayer.  For  example,  two  drunken  men  be- 
come involved  in  an  altercation  and  one  strikes 
the  other,  who  loses  his  equilibrium  and  falls, 
hitting  his  head  against  a  curbstone  and  fractur- 
ing his  skull.  The  striker  is  indicted  and  tried 
for  murder.  Now  he  is  doubtless  guilty  of  man- 
slaughter, but  he  is  less  dangerous  to  the  com- 
munity than  a  professional  thief  who  preys  upon 
the  public  by  impersonating  a  gasman  or  tele- 
phone repairer  and  by  thus  gaining  access  to  pri- 
vate dwellings  steals  the  owner's  property.  One 

12 


What  is  Crime? 

is  an  accidental,  the  other  an  intentional  criminal. 
One  is  hostile  to  society  as  a  whole  and  the  other 
is  probably  not  really  hostile  to  anybody.  Yet 
the  less  guilty  is  denominated  a  murderer,  and 
the  other  is  rarely  held  guilty  of  more  than  petty 
larceny.  A  fellow  who  bumps  into  you  on  the 
street,  if  he  be  accompanied  by  another,  and 
grabs  your  cane,  is  guilty  of  robbery  in  the  first 
degree, — "highway"  robbery, — and  may  get 
twenty  years  for  it,  but  the  same  man  may  pub- 
lish a  malicious  libel  about  you,  and  by  accusing 
you  of  the  foulest  practices  rob  you  of  your  good 
name  and  be  only  guilty  of  a  misdemeanor.  Yet 
the  reader  should  not  infer  that  definitions  and 
grades  of  crime  capable  of  corresponding  punish- 
ments are  not  proper,  desirable,  and  necessary. 
Of  course  they  are.  The  practical  use  of  such 
statutes  is  to  fix  a  maximum  sentence  of  punish- 
ment. As  a  rule  the  minimum  is  anything  the 
judge  sees  fit.  Hence  you  may  deduce  a  general 
principle  to  the  effect  that  the  charge  against  the 
prisoner,  even  assuming  his  guilt,  indicates  noth- 
ing definite  as  to  his  moral  turpitude,  danger  to 
the  community,  or  general  undesirability. 

But  we  may  honestly  go  much  further.  Not 
only  are  names  and  degrees  of  the  crimes  which 
a  defendant  may  have  committed  of  very  little 
assistance  in  determining  his  real  criminality,  but 

13 


The  Prisoner  at  the  Bar 

the  fact  that  he  has  committed  them  by  no  means 
signifies  that  he  is  morally  any  worse  than  some 
man  who  has  committed  no  so-called  crime  at  all. 
Many  criminals,  even  those  guilty  of  homicide, 
are  as  white  as  snow  compared  with  others  who 
have  never  transgressed  the  literal  wording  of  a 
penal  statute. 

"We  used  to  have  So  and  So  for  our  lawyer," 
remarked  the  president  of  a  large  street  railway 
corporation.  "He  was  always  telling  us  what  we 
couldn't  do.  Now  we  have  Blank,  and  pay  him 
one  hundred  thousand  dollars  a  year  to  tell  us 
how  we  can  do  the  same  things."  The  thief  who 
can  have  the  advice  of  able  counsel  "how  to  do 
it"  need  never  go  to  jail. 

Many  of  the  things  most  abhorrent  to  our 
sense  of  right  do  not  come  within  the  scope  of  the 
criminal  law.  Omissions,  no  matter  how  repre- 
hensible, are  usually  not  regarded  as  criminal, 
because  in  most  cases  there  is  no  technical  legal 
duty  to  perform  the  act  omitted.  Thus,  not  to 
remove  your  neighbor's  baby  from  the  railroad 
track  in  front  of  an  on-rushing  train,  although  it 
would  cause  you  very  little  trouble  to  do  so,  is 
no  crime,  even  if  the  child's  life  be  lost  as  a  re- 
sult of  your  neglect.  You  can  let  your  mother- 
in-law  choke  to  death  without  sending  for  a  doc- 
tor, or  permit  a  ruffian  half  your  size  to  kill  an 


What  is  Crime? 

old  and  helpless  man,  or  allow  your  neighbor's 
house  to  burn  down,  he  and  his  family  peacefully 
sleeping  inside  it,  while  you  play  on  the  pianola 
and  refuse  to  ring  up  the  fire  department,  and 
never  have  to  suffer  for  it — in  this  world. 

Passing  from  felonies — mala  in  se — to  misde- 
meanors— generally  only  mala  prohibita — almost 
anything  becomes  a  crime,  depending  upon  the 
arbitrary  act  of  the  legislature. 

It  is  a  crime  in  New  York  State  to  run  a  horse 
race  within  a  mile  of  where  a  court  is  sitting;  to 
advertise  as  a  divorce  lawyer;  to  go  fishing  or 
"play"  on  the  first  day  of  the  week;  to  set  off  fire- 
works or  make  a  "disbursing  noise"*  at  a  military 
funeral  in  a  city  on  Sunday;  to  arrest  or  attach  a 
corpse  for  payment  of  debt;  to  keep  a  "slot  ma- 
chine" ;  to  do  business  under  any  name  not  actu- 
ally your  own  full  name  without  filing  a  certificate 
with  the  county  clerk  (as,  for  example,  if,  being  a 
tailor,  you  call  your  shop  "The  P.  D.  Q.  Tailor- 
ing Establishment")  ;  to  ride  in  a  long-distance 
bicycle  race  more  than  twelve  hours  out  of  twen- 
ty-four; to  shoe  horses  without  complying  with 
certain  articles  of  the  Labor  Law;  to  fail  to  sup- 
ply seats  for  female  employes  in  a  mercantile 
establishment;  to  steal  a  ride  in  a  freight  car,  or 
to  board  such  a  car  or  train  while  in  motion;  to 

*  New  York  Penal  Code,  Section  276. 


The  Prisoner  at  the  Bar 

set  fire  negligently  to  one's  own  woods,  by  means 
of  which  the  property  of  another  is  endangered; 
to  run  a  ferry  without  authority,  or,  having  con- 
tracted to  run  one,  to  fail  to  do  so ;  to  neglect  to 
post  ferry  rates  (under  certain  conditions)  in 
English ;  to  induce  the  employe  of  a  railroad  com- 
pany to  leave  its  service  because  it  requires  him 
to  wear  a  uniform;  to  wear  a  railroad  uniform 
without  authority;  to  fish  with  a  net  in  any  part 
of  the  Hudson  River  (except  where  permitted  by 
statute)  ;  to  secretly  loiter  about  a  building  with 
intent  to  overhear  discourse  therein,  and  to  re- 
peat the  same  to  vex  others  (eavesdropping) ;  to 
sell  skimmed  milk  without  a  label;  to  plant  oys- 
ters (if  you  are  a  non-resident)  inside  the  State 
without  the  consent  of  the  owner  of  the  water;  to 
maintain  an  insane  asylum  without  a  license;  to 
enter  an  agricultural  fair  without  paying  the  en- 
trance fee;  to  assemble  with  two  or  more  other 
persons  "disguised  by  having  their  faces  painted, 
discolored,  colored  or  concealed,"  save  at  a  fancy- 
dress  ball  for  which  permission  has  been  duly  ob- 
tained from  the  police;  or  to  wear  the  badge  of 
the  "Patrons  of  Husbandry,"  or  of  certain  other 
orders  without  authority.  These  illustrations  are  se- 
lected at  random  from  the  New  York  Penal  Code. 
Where  every  business,  profession,  and  sport  is 
hedged  around  by  such  chevaux-de-frise  of  crim- 

16 


What  is  Crime? 

inal  statutes,  he  must  be  an  extraordinarily  care- 
ful as  well  as  an  exceptionally  well-informed  citi- 
zen who  avoids  sooner  or  later  crossing  the  dead- 
line. It  is  to  be  deprecated  that  our  law-makers 
can  devise  no  other  way  of  regulating  our  exist- 
ences save  by  threatening  us  with  the  shaved  head 
and  striped  shirt. 

The  actual  effect  of  such  a  multitude  of  statutes 
making  anything  and  everything  crimes,  punish- 
able by  imprisonment,  instead  of  increasing  our 
respect  for  law,  decreases  it,  unless  they  are  in- 
tended to  be  and  actually  are  enforced.  Acts 
mala  in  se  are  lost  in  the  shuffle  among  the  acts 
mala  prohibita,  and  we  have  to  become  students 
to  avoid  becoming  criminals. 

Year  by  year  the  legislature  goes  calmly  on 
creating  all  sorts  of  new  crimes,  while  failing  to 
amplify  or  give  effect  to  the  various  statutes  gov- 
erning existing  offences  which  to  a  far  greater  de- 
gree are  a  menace  to  the  community.  For  ex- 
ample, it  is  not  a  crime  in  New  York  State  to  pro- 
cure money  by  false  pretences  provided  the  per- 
son defrauded  parts  with  his  money  for  an  illegal 
purpose.* 

*  No  longer  the  law  of  New  York.  After  this  book  was  pub- 
lished the  Court  of  Appeals  reversed  the  conviction  of  Tracey 
for  his  $50,000  fraud  upon  Felix  by  means  of  the  "wire-tapping" 
game  and  affirmed  as  law  the  doctrine  of  People  vs.  McCord. 
The  author  takes  satisfaction  in  recording  that  the  Legislature 
thereupon  awoke  to  its  duties  and  amended  the  penal  code  in 
such  a  fashion  as  to  render  such  offences  criminal. 

17 


The  Prisoner  at  the  Bar 

In  the  McCord*  case,  in  which  the  Court  of  Ap- 
peals established  this  extraordinary  doctrine,  the 
defendant  had  falsely  pretended  to  the  complain- 
ant, a  man  named  Miller,  that  he  was  a  police 
officer  and  held  a  warrant  for  his  arrest.  By 
these  means  he  had  induced  Miller  to  give  him  a 
gold  watch  and  a  diamond  ring  as  the  price  of  his 
liberty.  The  conviction  in  this  case  was  reversed 
on  the  ground  that  Miller  parted  with  his  prop- 
erty for  an  unlawful  purpose;  but  there  was  a 
very  strong  dissenting  opinion  from  Mr.  Justice 
Peckham,  now  a  member  of  the  bench  of  the  Su- 
preme Court  of  the  United  States. 

In  a  second  case,  that  of  Livingston,f  the  com- 
plainant had  been  defrauded  out  of  five  hundred 
dollars  by  means  of  the  "green-goods"  game;  but 
this  conviction  was  reversed  by  the  Appellate 
Division  of  the  Second  Department  on  the  au- 
thority of  the  McCord  case.  The  opinion  was 
written  by  Mr.  Justice  Cullen,  now  Chief  Judge 
of  the  New  York  Court  of  Appeals,  who  says  in 
conclusion : 

"We  very  much  regret  being  compelled  to  re- 
verse this  conviction.  Even  if  the  prosecutor 
intended  to  deal  in  counterfeit  money,  it  is  no 
reason  why  the  appellant  should  go  unwhipped 

*46  New  York  470. 
t47  App.  Div.  283. 

18 


What  is  Crime? 

of  justice.  We  venture  to  suggest  that  it  might 
be  well  for  the  legislature  to  alter  the  rule  laid 
down  in  McCord  vs.  People." 

Well  might  the  judges  regret  being  compelled 
to  set  a  rogue  at  liberty  simply  because  he  had 
been  ingenious  enough  to  invent  a  fraud  which  in- 
volved the  additional  turpitude  of  seducing  an- 
other into  a  criminal  conspiracy.  Livingston  was 
turned  loose  upon  the  community,  in  spite  of  the 
fact  that  he  had  swindled  a  man  out  of  five  hun- 
dred dollars,  because  he  had  incidentally  led  the 
latter  to  believe  that  in  return  he  was  to  receive 
counterfeit  money  or  ugreen  goods"  which  might 
be  put  into  circulation.  Yet,  because,  some  years 
before,  the  judges  of  the  Court  of  Appeals  had, 
in  the  McCord  matter,  adopted  the  rule  followed 
in  civil  cases,  to  wit,  that  as  the  complaining  wit- 
ness was  himself  in  fault  and  did  not  come  into 
court  with  clean  hands  he  could  have  no  stand- 
ing before  them,  the  Appellate  Division  in  the 
next  case  felt  obliged  to  follow  them  and  to  rule 
tantamount  to  saying  that  two  wrongs  could 
make  a  right  and  two  knaves  one  honest  man.  It 
may  seem  a  trifle  unfair  to  put  it  in  just  this  way, 
but  when  one  realizes  the  iniquity  of  such  a  rule 
as  applied  to  criminal  cases,  it  is  hard  to  speak 
softly.  Thus  the  broad  and  general  doctrine 
seemed  to  be  established  that  so  long  as  a  thief 

19 


The  Prisoner  at  the  Bar 

could  induce  his  victim  to  believe  that  it  was  to 
his  advantage  to  enter  into  a  dishonest  transac- 
tion, he  might  defraud  him  to  any  extent  in  his 
power.  Immediately  there  sprang  into  being 
hordes  of  swindlers,  who,  aided  by  adroit  shyster 
lawyers,  invented  all  sorts  of  schemes  which  in- 
volved some  sort  of  dishonesty  upon  the  part  of 
the  person  to  be  defrauded.  The  "wire-tappers," 
of  whom  "Larry"  Summerfield  was  the  Napo- 
leon, the  "gold-brick"  and  "green-goods"  men, 
and  the  "sick  engineers"  flocked  to  New  York, 
which,  under  the  unwitting  protection  of  the 
Court  of  Appeals,  became  a  veritable  Mecca  for 
persons  of  their  ilk. 

The  "wire-tapping"  game  consisted  in  inducing 
the  victim  to  put  up  money  for  the  purpose  of  bet- 
ting upon  a  "sure  thing,"  knowledge  of  which  the 
thief  pretended  to  have  secured  by  "tapping"  a 
Western  Union  wire  of  advance  news  of  the 
races.  He  usually  had  a  "lay  out"  which  included 
telegraph  instruments  connected  with  a  dry  bat- 
tery in  an  adjoining  closet,  and  would  merrily 
steal  the  supposed  news  off  an  imaginary  wire 
and  then  send  his  dupe  to  play  his  money  upon 
the  "winner"  in  a  pretended  pool-room  which  in 
reality  was  nothing  but  a  den  of  thieves,  who 
instantly  absconded  with  the  money. 

In  this  way  one  John  Felix  was  defrauded  out 
20 


What  is  Crime? 

of  fifty  thousand  dollars  on  a  single  occasion.* 
Now  the  simplest  legislation  could  instantly 
remedy  this  evil  and  put  all  the  "wire-tappers" 
and  similar  swindlers  out  of  business,  yet  a  bill 
framed  and  introduced  in  accordance  with  the 
suggestion  of  the  highest  court  in  the  State  was 
defeated.  Instead  the  legislature  passes  scores 
of  entirely  innocuous  and  respectable  acts  like  the 
following,  which  became  a  law  in  1890: 

Ax  ACT  FOR  THE  PREVENTION  OF  BLINDNESS 
Section  I.  Should  .  .  .  nurse  having  charge  of  an 
infant  .  .  .  notice  that  one  or  both  eyes  of  such 
infant  are  inflamed  or  reddened  at  any  time  within 
two  weeks  after  its  birth  it  shall  be  the  duty  of  such 
nurse  ...  to  report  the  fact  in  writing  within 
six  hours  to  the  health  officer  or  some  legally  qualified 
practitioner  of  medicine  . 

Section  2.  Any  failure  to  comply  with  the  provisions  of 
this  act  shall  be  punished  by  a  fine  not  to  exceed  one 
hundred  dollars,  or  imprisonment  not  to  exceed  six 
months,  or  both. 

*The  operations  of  these  swindlers  recently  became  so  notori- 
ous that  the  District  Attorney  of  New  York  County  determined 
to  prosecute  the  perpetrators  of  the  Felix  swindle,  in  spite  of 
the  fact  that  the  offence  appeared  to  come  within  the  language 
if  the  Court  of  Appeals  in  the  McCord  and  Livingston  cases. 
Accordingly  Christopher  Tracy,  alias  Charles  Tompkins,  alias 
Topping,  etc.,  etc.,  was  indicted  (on  the  theory  of  "trick  and 
device")  for  the  "common-law"  larceny  of  Felix's  fifty  thousand 
dollars. 

The  trial  came  on  before  Judge  Warren  W.  Foster  in  Part  III 
of  the  General  Sessions  on  February  27,  1906.  A  special  panel 
quickly  supplied  a  jury,  which,  after  hearing  the  evidence,  re- 
turned a  verdict  of  guilty  in  short  order. 

It  now  remains  for  the  judges  of  the  Court  of  Appeals  to 
decide  whether  they  will  extend  the  doctrine  of  the  McCord  and 
Livingston  cases  to  a  fraud  of  this  character,  whether  they  will 
limit  the  doctrine  strictly  to  cases  of  precisely  similar  facts,  or 

21 


The  Prisoner  at  the  Bar 

The  criminal  law  which  had  its  origin  when  vio- 
lence was  rife  is  admirably  adapted  to  the  preven- 
tion, prosecuting  and  punishment  of  crude  crimes, 
such  as  arson,  rape,  robbery,  burglary,  mayhem, 
assault,  homicide,  and  "common-law"  larceny, — 
theft  accompanied  by  a  trespass.  In  old  times 
everything  was  against  the  man  charged  with 
crime — at  least  that  was  the  attitude  of  the  court 
and  jury.  "Aha  I"  exclaims  the  judge  as  the  evi- 
dence goes  in.  "You  thought  you  were  stealing 
only  a  horse!  But  you  stole  a  halter  as  well!" 
And  the  spectators  are  convulsed  with  merriment. 

We  take  honest  pride  in  the  protection  which 
our  law  affords  to  the  indicted  prisoner.  It  is  the 
natural  expression  of  our  disapproval  of  a  system 
which  at  the  time  of  our  severance  from  England 
ignored  the  rights  of  the  individual  for  those  of 
the  community.  We  touched  the  lips  of  the  de- 
fendant and  gave  him  the  right  to  speak  in  his 
own  behalf.  We  gave  him  an  unlimited  right  of 
appeal  on  any  imaginable  technicality.  But 

whether  they  will  frankly  refuse  to  be  bound  by  any  such 
absurd  and  iniquitous  theory  and  consign  the  McCord  case  to 
the  dust-heap  of  discarded  and  mistaken  doctrines,  where  it  right- 
fully belongs.  Their  action  will  determine  whether  the  per- 
petrators of  the  most  ingenious,  elaborate  and  successful  bunco 
game  in  the  history  of  New  York  County  shall  be  punished  for 
their  offence  or  instead  be  turned  loose  to  prey  at  will  upon 
the  community  at  large.  (See  "The  Last  of  the  Wire-Tappers" 
in  the  American  Magazine  for  June,  1906;  also  incorporated  in 
the  author's  "True  Stories  of  Crime,"  pp.  103-121,  published  by 
Charles  Scribner's  Sons,  1908.) 

22 


What  is  Crime? 

while  we  have  been  making  it  harder  and  harder 
to  convict  our  common  criminals,  we  have  to  a 
very  great  extent  failed  to  recognize  the  fact  that 
all  sorts  of  new  and  ingenious  crimes  have  come 
into  existence  with  which  the  law  in  its  present 
state  is  utterly  unable  to  cope.  The  evolution  of 
the  modern  corporation  has  made  possible  lar- 
cenies to  the  punishment  of  which  the  law  is 
entirely  inadequate.  "Acts  for  the  prevention  of 
blindness"  are  perhaps  desirable,  but  how  about 
a  few  statutes  to  prevent  the  officers  of  insurance 
companies  from  arbitrarily  diverting  the  funds 
of  that  vague  host  commonly  alluded  to  as  "wid- 
ows and  orphans"?  The  careless  nurse  is  a  crim- 
inal and  may  be  confined  in  a  penitentiary;  while 
perhaps  a  man  who  may  be  guilty  of  a  great 
iniquity  and  known  to  be  so  drives  nonchalantly 
off  in  his  coach  and  four. 

What  is  crime  ?  We  may  well  ask  the  question, 
only  eventually  to  be  confronted  by  that  illuminat- 
ing definition  with  which  begins  the  Penal  Code — 
"A  crime  is  an  act  or  omission  forbidden  by  law 
and  punishable  upon  conviction  by  ...  penal 
discipline."  Let  us  put  on  our  glasses  and  find  out 
what  these  acts  or  omissions  are.  When  we  have 
done  that  we  may  begin  to  look  around  for  the 
criminals.  But  it  will  be  of  comparatively  little 
assistance  in  finding  the  sinners. 

23 


The  Prisoner  at  the  Bar 

So-called  criminologists  delight  in  measuring 
the  width  of  the  skulls  between  the  eyes,  the 
height  of  the  foreheads,  the  length  of  the  ears, 
and  the  angle  of  the  noses  of  persons  convicted 
of  certain  kinds  of  crimes,  and  prepare  for  the 
edification  of  the  simple-minded  public  tables 
demonstrating  that  the  burglar  has  this  kind  of  a 
head,  the  pickpocket  that  sort  of  an  ear,  and  the 
swindler  such  and  such  a  variety  of  visage.  Ex- 
haustive treatises  upon  crime  and  criminals  lay 
down  general  principles  supposed  to  assist  in  de- 
termining the  kind  of  crime  for  which  any  par- 
ticular unfortunate  may  have  a  predilection.  One 
variety  of  criminal  looks  this  way  and  another 
looks  that  way.  One  has  blue  eyes,  the  other 
brown  eyes.*  Some  look  up,  others  look  down. 
My  friend,  if  you  examine  into  the  question,  you 
will  probably  discover  that  the  clerk  who  sells 
you  your  glass  of  soda  water  at  the  corner  drug 
store  will  qualify  for  some  one  of  these  classes,  so 
will  your  host  at  dinner  this  evening,  so,  very 
likely,  will  the  family  doctor  or  the  pastor  of 
your  church. 

The  writer  is  informed  that  there  has  recently 
been  produced  an  elaborate  work  on  political 

*The  following  appeared  in  the  New  York  Globe  for  April  25, 
1905:  "Criminal  eyes. — It  is  well  known,"  says  Dr.  Beddoe, 
F.R.S.,  "that  brown  eyes  and  dark  hair  are  particularly  common 
among  the  criminal  classes.  An  American  observer  calls  the 
brown  the  criminal  eye,  etc.,  etc." 

24 


What  is  Crime? 

criminals  in  which  an  attempt  is  made  to  set  forth 
the  telltale  characteristics  of  such.  It  is  explained 
that  the  tendency  to  commit  such  crimes  may  be 
inherited.  You  are  about  as  likely  to  inherit  an 
inclination  to  commit  a  political  crime  as  you  are 
to  derive  from  a  maiden  aunt  a  tendency  to  vio- 
late a  speed  ordinance  or  make  a  "disbursing" 
noise. 

Let  some  one  codify  all  the  sins  and  meannesses 
of  mankind,  let  the  legislatures  make  them  crimes 
and  affix  appropriate  penalties,  then  those  of  us 
who  still  remain  outside  the  bars  may  with  more 
propriety  indulge  ourselves  in  reflections  at  the 
expense  of  those  who  are  not. 


CHAPTER  II 

WHO   ARE   THE    REAL    CRIMINALS? 

SOME  reader  of  the  preceding  chapter  may 
perhaps  remark,  "This  is  all  very  well  so  far 
as  it  goes.  It  doubtless  is  entirely  true  from  a 
purely  technical  point  of  view.  But  that  is  only 
one  side  of  the  matter.  How  about  the  real  crim- 
inals ?"  This  is  neither  an  unexpected  nor  an  un- 
invited criticism.  Who  are  the  "real"  criminals? 
Charles  Dudley  Warner  says:  "Speaking  tech- 
nically, we  put  in  that  [the  criminal]  class  those 
whose  sole  occupation  is  crime,  who  live  upon  it 
as  a  profession  and  who  have  no  other  perma- 
nent industry.  They  prey  upon  society.  They 
are  by  their  acts  at  war  upon  it  and  are  outlaws." 
Now  the  class  of  professional  criminals  to  which 
Mr..  Warner  refers  as  contrasted  with  the  great 
mass  of  criminal  defendants  as  a  whole  is,  in 
point  of  fact,  relatively  so  small,  and  so  easily 
recognized  and  handled,  that  it  plays  but  an  in- 
conspicuous part  in  the  administration  of  criminal 
justice. 

The  criminals  who  conform  accurately  to  child- 
26 


Who  are  the  Real  Criminals? 

hood's  tradition  are  comparatively  few  in  num- 
ber. The  masked  highwayman,  the  safe  cracker 
and  even  the  armed  house  burglar  have,  with  a 
few  exceptions,  long  since  withdrawn  from  the 
actual  pursuit  of  their  romantic  professions  and 
exist  practically  only  in  the  eagerly  devoured 
pages  of  Sherlock  Holmes  and  the  "memoirs  of 
great  detectives."  New  and  almost  more  pic- 
turesque figures  have  taken  their  places, — the 
polite  and  elegant  swindler,  the  out-at-the-elbows 
but  confidence-inspiring  promoter  of  assetless 
corporations,  the  dealer  in  worthless  securities, 
and  the  forger  who  drives  in  his  own  carriage  to 
the  bank  he  intends  to  defraud.  In  some  cases 
the  individuals  are  the  same,  the  safe-cracker 
merely  having  doffed  his  mask  in  favor  of  the  silk 
hat  of  Nassau  Street.  Of  yore  he  stole  valuable 
securities  which  he  was  compelled  to  dispose  of  at 
a  tremendous  discount;  now  he  sells  you  worth- 
less stocks  and  bonds  at  a  slight  premium.  Mr.  J. 
Holt  Schorling,  writing  in  The  Contemporary 
Review  for  June,  1902,  points  out  that  while  all 
crimes  other  than  fraud  decreased  materially  in 
England  from  1885  to  1899,  the  crime  of  fraud 
itself  materially  increased  during  the  same 
period.* 

•Including  under  the  general  term  "fraud,"  obtaining  money 
by  false  pretences,  thefts  by  solicitors,  bankers,  agents,  directors, 
trustees,  etc,  (generally  recorded  under  the  euphony  'mis-ap- 

27 


The  Prisoner  at  the  Bar 

The  subject  is  a  tempting  one,  but  it  is  not 
essential  to  our  thesis.  The  devil  is  not  dead; 
he  has  merely  changed  his  clothes.  Criminal 
activity  has  not  subsided;  it  has  instead  sought 
new  ways  to  meet  modern  conditions,  and  so  fav- 
orable are  these  that  while  polite  crime  may  be 
said  still  to  be  in  its  infancy,  it  is  nevertheless 
thriving  lustily. 

While  the  degenerate  criminal  class  is  the  sub- 
ject of  much  elaborate  and  minute  analysis  by 
our  continental  neighbors,  its  extent  is  constantly 
exaggerated  and  its  relation  to  the  other  crim- 
inal classes  not  fully  appreciated.  To  read  some 
supposedly  scientific  works  one  would  imagine 
that  every  court  of  criminal  justice  was  or  should 
be  nothing  but  a  sort  of  clinic.  To  these  learned 
authors,  civilization,  it  is  true,  owes  a  debt  for 
their  demonstration  that  some  crime  is  due  to 
insanity  and  should  be  prevented,  and  where  pos- 

propriation'"),  falsifying  accounts,  etc.,  Mr.  Schorling  found 
that  taking  the  number  of  these  two  divisions  of  crime  between 
1885-1889  as  1 00%  there  had  been  the  following  relative  decrease 
and  increase  between  them: 


All  Crimes  Except  Fraud 

1890-1894^— •— i      96.2% 
90.4% 


Frauds 

1885-1889— mtmm i         100    % 
1 8  90- 1 8  94^^""^""    110.1% 


A  similar  table  constructed  for  the  United  States  during  the 
last  fifteen  years  would  be  instructive  but  perhaps  unduly  de- 
pressing. Recent  financial  and  other  disclosures  would  prob- 
ably send  up  the  raecury  of  the  "fraud"  thermometer  until  it 
burst 

28 


Who  are  the  Real  Criminals? 

sible,  cured  in  much  the  same  manner.  But  they 
have  created  an  impression  that  practically  all 
crime  is  the  result  of  abnormality. 

Every  great  truth  brings  in  its  train  a  few  false- 
hoods,— every  great  reform  a  few  abuses.  The 
first  penological  movement  was  in  the  direction 
of  prison  reform.  While  perhaps  the  psycho- 
logical problem  was  not  entirely  overlooked,  it 
was  completely  subordinated  to  the  physical.  It 
is  a  noble  thing  that  the  convict  should  have  a 
warm  cell  in  winter  and  a  cool  one  in  summer, 
with  electric  light  and  running  water,  wholesome 
and  nutritious  food,  books,  bathrooms,  hospitals, 
chapels,  concerts,  ball  games  and  chaplains.  uBut 
it  must  be  noted  that  along  with  this  movement 
has  grown  up  a  sickly  sentimentality  about  crim- 
inals which  has  gone  altogether  too  far,  and 
which,  under  the  guise  of  humanity  and  philan- 
thropy, confounds  all  moral  distinctions."  To  a 
large  number  of  well-meaning  people  every  con- 
vict is  a  person  to  whom  the  State  has  done  an 
injury. 

Then  came  the  study  of  degeneracy,  with  the 
cranium  of  every  criminal  as  a  subject  of  investi- 
gation. In  1 88 1  or  thereabouts  Professor  Bene- 
dickt  published  his  conclusion  that  "the  brains  of 
criminals  exhibit  a  deviation  from  the  anthro- 
pological variety  of  their  species,  at  least  among 

29 


The  Prisoner  at  the  Bar 

the  cultured  races."  It  was  a  commendable  thing 
to  point  out  the  relation  of  insanity  to  crime.  It 
is  an  undeniable  truth  that  there  are  insane  people 
who  are  predisposed  to  crime  just  as  there  are 
those  who  are  predisposed  to  dance. 

The  vicious  criminal  class  contains  many  who 
are  actually  or  incipiently  insane,  and  it  numbers 
a  great  many  more  who  are  physically  and  men- 
tally normal,  who  yet  by  reason  of  their  education 
and  environment  are  not  much  to  be  blamed  for 
doing  wrong.  But  it  is  far  from  true  that  a 
majority  of  the  "real"  criminals  are  mentally  de- 
fective. Crime  and  insanity  are  no  more  closely 
related  than  sin  and  insanity.  Certain  criminals 
are  also  perverts.  But  they  would  be  criminals 
even  if  they  were  not  perverts.  The  fact  that  a 
man  who  takes  drugs  is  also  a  criminal  does  not 
prove  that  he  is  a  criminal  because  he  takes  drugs. 
We  know  many  drug-takers  who  are  otherwise 
highly  respectable.  Go  to  the  General  Sessions 
and  watch  the  various  defendants  who  are 
brought  into  court  and  you  will  discover  little 
more  degeneracy  or  abnormality  than  you  would 
find  on  the  corner  of  Twenty-third  Street  and 
Fifth  Avenue  among  the  same  number  of  un- 
accused  citizens. 

The  point  which  the  writer  desires  to  make  is 
that,  leaving  out  the  accidental  and  experimental 

30 


Who  are  the  Real  Criminals? 

criminals,  there  is  a  much  closer  relation  between 
all  law-breakers  than  the  public  and  our  legisla- 
tors seem  to  suppose.  The  man  who  adulterates 
his  milk  to  make  a  little  extra  money  is  in  the 
same  class  with  the  financial  swindler.  One 
waters  his  milk,  the  other  his  stock.  The  same 
underhanded  desire  to  better  one's  self  at  the 
expense  of  one's  neighbor  is  the  moving  cause  in 
each  case.  The  forger  belongs  to  the  class  whose 
heads  the  criminologists  delight  to  measure,  but 
they  would  not  measure  your  milkman's.  The 
man  who  steals  your  purse  is  a  felon  and  a  subject 
of  scientific  investigation  and  discussion;  the  man 
who  forges  a  trade-mark  commits  only  a  mis- 
demeanor and  excites  no  psychological  interest. 
But  they  are  criminals  of  exactly  the  same  type. 
The  ucrime-is-a-disease"  theory  has  been 
worked  entirely  too  hard.  It  is  a  penologic  gen- 
erality which  does  not  need  any  truckling  to  popu- 
lar sentimentality  to  demonstrate  its  truth.  But 
there  are  as  many  sorts  of  this  "disease"  as  there 
are  kinds  of  crime,  and  some  varieties  would  be 
better  described  by  other  and  less  euphemistic 
names.  Crime  is  no  more  a  disease  than  sin,  and 
the  sinners  deserve  a  good  share  of  the  sympathy 
that  is  at  present  wasted  on  the  criminals.  The 
poor  fellow  who  has  merely  done  wrong  gets 
but  scant  courtesy,  but  once  jerk  him  behind  the 

31 


The  Prisoner  at  the  Bar 

bars  and  the  women  send  him  flowers.  If  crime 
is  a  disease,  sin  is  also  a  disease,  and  we  have  all 
got  a  case  of  it.  It  is  strange  that  there  is  not 
more  "straight  talk"  on  this  subject.  Every 
one  of  us  has  criminal  propensities, — that  is  to 
say,  in  every  one  of  us  lurks  the  elemental  and  un- 
lawful passions  of  sex  and  of  acquirement.  It  is 
but  a  play  on  words  to  say  that  the  man  who 
yields  to  his  inclinations  to  the  extent  of  trans- 
gressing the  criminal  statutes  is  "diseased."  Up 
to  a  certain  point  it  is  his  own  business,  beyond 
it  becomes  ours,  and  he  transgresses  at  his  peril. 

The  ordinary  criminal  usually  is  such  because 
he  "wants  the  money";  he  either  does  not  like  to 
work  or  wants  more  money  than  he  can  earn 
honestly.  He  has  no  "irresistible  impulse"  to 
steal, — he  steals  because  he  thinks  he  can  "get 
away  with  it." 

The  so-called  professional  thief  is  usually  one 
who  has  succeeded  in  so  doing  or  who,  having 
been  convicted  of  larceny,  finds  he  cannot  live 
agreeably  other  than  by  thieving;  but  the  man 
is  no  less  a  professional  thief  who  systematically 
puts  money  in  his  pocket  by  dishonest  and  illegal 
methods  in  business.  The  fact  that  it  is  not,  in 
the  ordinary  sense,  his  "sole  occupation"  does  not 
affect  the  question  at  all.  Indeed,  it  would  be 
difficult  for  one  whose  business  life  was  perme- 

32 


Who  are  the  Real  Criminals? 

ated  by  graft  to  refute  the  general  allegation  that 
his  "sole  occupation"  was  criminal.  Granting 
this,  your  dishonest  business  man  fulfils  every  re- 
quirement of  Mr.  Warner's  definition,  for  he 
"preys  upon  society  and  is  [secretly]  at  war  upon 
it."  He  may  not  be  an  "outlaw,"  but  he  should 
be  one  under  any  enlightened  code  of  criminal 
laws.* 

There  is  no  practical  distinction  between  a 
man  who  gets  all  of  a  poor  living  dishonestly  and 
one  who  gets  part  of  an  exceedingly  good  living 
dishonestly.  The  thieving  of  the  latter  may  be 
many  times  more  profitable  than  that  of  the 
former.  So  long  as  both  keep  at  it  systematically 
there  is  little  to  choose  between  the  thief  who 
earns  his  livelihood  by  picking  pockets  and  the 
grocer  or  the  financier  who  swindles  those  who 
rely  upon  his  representations.  The  man  who 
steals  a  trade-mark,  counterfeits  a  label,  or  adul- 
terates food  or  drugs,  who  makes  a  fraudulent 
assignment  of  his  property,  who  as  a  director  of 
a  corporation  declares  an  unearned  dividend  for 
the  purpose  of  selling  the  stock  of  himself  and 
his  associates  at  an  inflated  value,  who  publishes 
false  statements  and  reports,  makes  illegal  loans, 
or  who  is  guilty  of  any  of  the  thousand  and  one 

*Cf.  "Unpunished  Commercial  Crime"  in  "Moral  Overstrain 
by  G.  W.  Alger.    Houghton,  Mifflin  &  Co.,  1906. 

33 


The  Prisoner  at  the  Bar 

dishonest  practices  which  are  being  uncovered 
every  day  in  the  management  of  life  insurance, 
banking,  trust,  and  railroad  companies,  is  pre- 
cisely as  "real"  a  criminal  as  one  who  lurks  in 
an  alley  and  steals  from  a  passing  wagon.  Each 
is  guilty  of  a  deliberate  violation  of  law  imply- 
ing conscious  wrong,  and  each  commits  it  for 
essentially  the  same  reason. 

Yet  at  the  present  time  the  law  itself  recog- 
nizes a  fictitious  distinction  between  these  crimes 
and  those  of  a  more  elementary  sort.  The  adul- 
teration of  foods,  the  theft  of  trade-marks,  stock- 
jobbing, corporation  frauds,  and  fraudulent  as- 
signments are  as  a  rule  only  misdemeanors.  The 
trouble  is  that  we  have  not  yet  adjusted  ourselves 
to  the  idea  that  the  criminal  who  wears  a  clean 
collar  is  as  dangerous  as  one  who  does  not.  Of 
course,  in  point  of  fact  he  is  a  great  deal  worse, 
for  he  has  not  the  excuse  of  having  a  gnawing  at 
his  vitals. 

If  a  rascally  merchant  makes  a  fraudulent  con- 
veyance of  his  property  and  then  "fails," 
although  he  may  have  secreted  goods  worth  fifty 
thousand  dollars,  the  punishment  of  himself  and 
his  confederate  is  limited  to  a  year  in  the  peni- 
tentiary and  a  thousand  dollars  fine,  while  if  a 
bank  cashier  should  steal  an  equivalent  amount 
and  turn  it  over  to  an  accomplice  for  safe  keep- 

34 


Who  are  the  Real  Criminals? 

ing  he  could  receive  ten  years  in  State's  prison. 
Even  in  this  last  case  the  receiver's  punishment 
could  not  exceed  five  years.  Thus  Robert  A. 
Ammon,  who  was  the  sole  person  to  profit  by  the 
notorious  "Franklyn  Syndicate,"*  when  con- 
victed of  receiving  the  proceeds  of  the  fraud, 
could  be  sentenced  to  only  five  years  in  Sing  Sing, 
while  his  dupe,  Miller,  who  sat  at  the  desk  and 
received  the  money,  although  he  acted  through- 
out by  the  other's  advice  and  counsel,  in  fact  did 
receive  a  sentence  of  ten  years  for  practically  the 
same  offence.  However  inequitable  this  may 
seem,  what  inducements  are  offered  in  the  field 
of  fraudulent  commercial  activity  when  a  similar 
kind  of  theft  is  punishable  by  only  a  year  in  the 
penitentiary? 

One  can  hardly  blame  such  picturesque  swin- 
dlers as  "Larry"  Sumerfield,  who  saw  gigantic 
financial  and  commercial  frauds  being  perpetrated 
on  every  side,  while  the  thieves  who  had  enriched 
themselves  at  the  expense  of  a  gullible  public  went 
scot-free,  for  wanting  to  participate  in  the  feast. 
Almost  every  day  sees  some  new  corporation 
brought  into  being,  the  only  object  of  which  is  to 
enable  its  organizers  to  foist  its  worthless  stock 
among  poorly  paid  clerks,  stenographers,  trained 
nurses,  elevator  men  and  hard-working  me- 

*See  "True  Stories  of  Crime,"  referred  to  supra,  p.  15. 

35 


The  Prisoner  at  the  Bar 

chanics.  The  stock  is  disposed  of  and  the  "cor- 
poration" (usually  a  copper  or  gold  mining  en- 
terprise) is  never  heard  of  again.  Apparently 
if  you  do  the  thing  correctly  there  can  be  no  "come 
back."  Accordingly  Summerfield  and  his  gang 
of  "sick  engineers"  hawked  through  the  town 
nearly  eighty  thousand  dollars'  worth  of  the  se- 
curities of  the  Horse  Shoe  Copper  Mining  Com- 
pany, which  owned  a  hole  in  the  ground  in  Ari- 
zona. It  was  all  done  under  legal  advice  and  was 
undoubtedly  believed  to  be  within  the  letter  of 
the  law.  But  there  were  a  few  unnecessary  false- 
hoods, a  few  slips  in  the  schedule,  a  few  com- 
plainants who  would  not  be  placated,  and  "Larry" 
found  himself  in  the  toils.  He  was  convicted  of 
grand  larceny  in  the  first  degree,  secured  a  certifi- 
cate of  reasonable  doubt  and  gave  bail  in  a  very 
large  amount.  Within  a  short  time  he  was  re- 
arrested  for  working  the  same  game  upon  an  un- 
suspecting southerner.  This  time  his  bail  was 
increased  to  thirty  thousand  dollars.  It  was  not 
long  after  the  investigations  into  the  Ship-Build- 
ing Trust  scandal  and  New  York  had  been  edified 
by  seeing  the  inside  workings  of  some  very  high 
finance.  After  his  temporary  release  Summer- 
field  strolled  over  to  Pontin's  restaurant  for 
lunch,  where  he  sat  down  at  a  table  adjoining  one 

36 


Who  are  the  Real  Criminals? 

occupied  by  the  assistant  district  attorney  who 
had  prosecuted  and  convicted  him. 

"How  are  you,  Mr.  ?"  inquired  "Larry" 

with  his  usual  urbanity.  "How  are  things?" 

"So  so,"  replied  the  prosecutor,  amused  at  the 
nonchalance  of  a  man  who  might  reasonably  ex- 
pect to  be  in  Sing  Sing  within  three  months. 
"How's  business?" 

"Oh,  pretty  good,"  returned  Larry.  "You 
know  there  is  a  sucker  born  every  minute." 

"I  should  think  after  your  conviction  you  would 
have  had  sense  enough  to  keep  out  of  swindling 
for  a  while,"  continued  the  assistant. 

"Swindling!"  exclaimed  Summerfield.  "Swin- 
dling nothin' !  My  lawyer  says  I  didn't  commit 
any  crime.  Didn't  the  Supreme  Court  say  there 
was  a  reasonable  doubt  in  my  case?  Well,  I'm 
just  giving  myself  the  benefit  of  it, — that's  all. 
I'm  entitled  to  it.  How  about  those  Ship-Build- 
ing fellers?" 

The  "Ship-Building  fellers"  have  never  been 
convicted  of  any  wrong-doing.  Perhaps  they  com- 
mitted no  crime.  Summerfield  has  three  years 
more  to  serve  in  Sing  Sing.* 

In  this  connection  the  reader  will  recall  the  at- 

*Since  publication  of  this  book  Summerfield  has  been  dis- 
charged from  prison,  having  earned  his  parole  by  exemplary 
conduct  He  has  gone  West  to  lead  a  new  and  better  life,  and 
there  is  reason  to  believe  that  he  will  succeed  in  doing  so. 

37 


The  Prisoner  at  the  Bar 

titude  of  the  inhabitants  of  Lilliput  as  chronicled 
by  Gulliver. — "They  look  upon  fraud  as  a  greater 
crime  than  theft,  and  therefore  seldom  fail  to 
punish  it  with  death;  for  they  allege  that  care 
and  vigilance,  with  a  very  common  understand- 
ing, may  preserve  a  man's  goods  from  theft,  but 
honesty  has  no  defence  against  superior  cunning; 
.  .  .  the  honest  dealer  is  always  undone,  and 
the  knave  gets  the  advantage.  I  remember  when 
I  was  once  interceding  with  the  king  for  a  crim- 
inal who  had  wronged  his  master  for  a  great  sum 
of  money,  which  he  had  received  by  order,  and 
ran  away  with ;  and  happening  to  tell  his  Majesty 
by  way  of  extenuation  that  it  was  only  a  breach 
of  trust,  the  Emperor  thought  it  monstrous  in  me 
to  offer  as  a  defence  the  greatest  aggravation  of 
the  crime;  and  truly  I  had  little  to  say  in  return, 
further  than  the  common  answer,  that  different 
nations  had  different  customs;  for,  I  confess,  I 
was  heartily  ashamed." 

Any  definition  of  the  criminal  class  which  limits 
it  to  those  who  umake  their  living"  by  crime  is 
inadequate  and  begs  the  question  entirely.  There 
is  no  choice  between  the  grafter  and  the  "pro- 
fessional" thief,  the  boodler  and  the  bank  robber. 
They  are  all  "real"  criminals.  One  is  as  "dis- 
eased" and  "degenerate"  as  the  other.  Every 
reversed  conviction  of  a  "grafter"  lowers  a  peg 

38 


Who  are  the  Real  Criminals? 

the  popular  respect  for  law.  The  clerk  in  the 
corner  grocery  in  Dakota  feels  the  wireless  in- 
fluence of  the  boodler  in  St.  Louis,  and  the  "suc- 
cessful" failure  in  New  York  sets  some  fellow 
thinking  in  San  Francisco. 

The  so-called  degenerate  and  professional 
criminals  constitute  a  very  small  fraction  of  the 
law-breakers  and  it  is  not  from  either  class  that 
we  have  most  to  fear.  Our  real  danger  lies  in 
those  classes  of  the  population  who  have  no  re- 
gard for  law,  if  not  an  actual  contempt  for  it, 
and  who  may  become  criminals,  or  at  least  crim- 
inal, whenever  any  satisfactory  reason,  coupled 
with  adequate  opportunity,  presents  itself.  From 
this  class  spring  the  experimental  criminals  of 
every  sort,  who  in  time  become  "professionals," 
and  from  it  the  embezzler,  the  stock  jobber,  the 
forger  and  business  thief.  From  it  as  well  are 
largely  recruited  those  who  commit  the  crimes 
of  violence  which,  however  undeservedly,  give 
the  United  States  such  an  unenviable  place  upon 
the  tables  of  the  statisticians.  From  it  spring  the 
"fellow  who  does  not  care"  or  who  "will  take  a 
chance,"  the  dynamiter,  the  man  who  is  willing 
to  "turn  a  trick"  at  a  price,  and  all  those  who 
need  the  strong  arm  of  the  law  to  restrain  them 
from  yielding  to  their  entirely  normal  evil  in- 
clinations. 

39 


The  Prisoner  at  the  Bar 

The  man  who  deliberately  violates  the  law  by 
doing  that  which  he  knows  to  be  wrong  is  a  real 
criminal,  whether  he  be  a  house-breaker,  an  adul- 
terator of  drugs,  the  receiver  of  a  fraudulent 
assignment  or  a  trade-mark  thief,  an  insurance 
"grafter,"  a  bribe  giver,  or  a  butcher  who  charges 
the  cook's  commission  against  next  Sunday's  de- 
livery. The  writer  fails  to  see  the  slightest  valid 
distinction  between  them  and  believes  it  should  be 
made  possible  to  punish  them  all  with  equal 
severity.  There  is  no  reason  why  one  should  be 
a  felon,  another  guilty  of  only  a  misdemeanor, 
while  still  another  is  guilty  of  nothing  at  all.  The 
cause  of  crime  is  our  general  and  widespread  lack 
of  respect  for  law,  and  this  in  turn  is  largely  due 
to  the  unpunished,  and  often  unpunishable,  dis- 
honesty which  seems  to  permeate  many  phases  of 
commercial  activity.  Diogenes's  job  is  still 
vacant. 


40 


CHAPTER    III 

THE   ARREST 

TO  most  of  us  modest  folk  a  police  officer 
looks  not  an  inch  less  than  eight  feet  in 
height, — and  his  blue  coat  and  brass  buttons 
typify  the  majesty  and  inflexibility  of  the  law.  At 
his  most  trivial  gesture  the  coachmen  rein  in  their 
curvetting  steeds  upon  the  crowded  thoroughfare, 
and  at  his  lightest  word  the  gaping  pedestrian 
obediently  "moves  on."  When  necessity  com- 
pels we  address  him  deprecatingly  and,  as  it  were, 
with  hat  in  hand,  and  if  he  deign  to  listen  to  us, 
and  still  more  if  he  condescend  to  reply,  we  thrill 
with  pride.  We  experience  a  certain  surprise 
that  he  has  seen  fit  to  give  heed  to  us  at  all  and 
has  not,  instead,  ordered  us  roughly  about  our 
business  with  threatening  mien  and  uplifted  club. 
That  he  has  rendered  us  assistance  fills  us  with 
humble  gratitude.  One  feels  like  Dr.  Holmes, 

"How  kind  it  was  of  him 
To  mind  a  slender  man  like  me! 
He  of  the  mighty  limb  1" 

It  rarely  occurs  to  us  that  these  stomachic 


The  Prisoner  at  the  Bar 

Titans  are  in  fact  our  servants  and  that  they  have 
no  authority  save  that  which  they  have  received 
from  ourselves, — that,  horrible  thought!  they 
wear  our  livery  as  assuredly  as  does  Jeames  or 
Wilkins.  Why  do  these  big  men  patrol  the 
streets  and  order  us  about?  Simply  because  in 
these  busy  days  the  ordinary  citizen  has  neither 
time  nor  inclination  to  attend  to  his  own  criminal 
business,  and  because  it  is  better  upon  the  whole 
for  the  State  to  attend  to  it  for  him. 

Eight  hundred  years  ago  the  punishment  of 
crime  was  a  matter  of  private  vengeance  grad- 
ually evolving  itself  into  the  criminal  procedure 
of  modern  English  law.  The  injured  citizen  took 
his  appeal  uto  the  county"  and  fought  it  out  with 
his  wrong-doer  either  personally  or  by  proxy. 
The  idea  was,  originally,  that  the  man  who  had 
been  injured  ought  to  have  his  revenge,  and  crim- 
inal justice  in  England  even  to-day  savors  for  this 
reason  somewhat  of  private  litigation.  Of  course, 
nowadays,  crime  is  punished  on  the  theory  that 
the  public  has  been  injured;  and  that  not  only 
does  the  safety  of  the  community  require  that  a 
repetition  of  the  same  crime  by  the  same  offender 
should  be  prevented,  but  also  that  an  example 
should  be  made  of  the  evil-doer  as  a  lesson  to 
others.  Be  this  as  it  may,  vengeance  and  not 

42 


The  Arrest 

public  spirit  is  still  the  moving  cause  of  ninety 
per  cent  of  all  prosecutions  for  crime. 

Just  as  the  right  to  apprehend  a  wrong-doer 
was  an  inherent  right  at  the  common  law  of  every 
free-born  English  subject,  it  is  our  inherent  right 
to-day,  modified  or  extended  by  the  statute  law  of 
the  several  States,  and,  save  where  a  court  of 
justice  has  issued  its  warrant  and  commands  its 
agents  to  apprehend  the  party  named  therein,  one 
person  has  substantially  the  same  right  as  an- 
other to  arrest  a  criminal,  even  if  that  other  be 
an  officer  of  the  law. 

The  policeman  has  no  greater  rights  in  the  mat- 
ter of  preventing  crime  or  arresting  evil-doers 
than  the  citizen.  He  is  merely  hired  by  the  citi- 
zen to  do  it  for  him.  The  only  difference  is  that 
it  is  the  duty  of  the  officer  by  virtue  of  his  posi- 
tion to  make  arrests,  just  as  it  Is  that  of  the  fire- 
man to  extinguish  fires.  Yet  it  is  undoubtedly  the 
fact  that  nine-tenths  of  us  really  believe  that  the 
policeman's  blue  coat,  helmet,  and  club  invest  him 
with  some  sacred  and  peculiar  authority  of  his 
own.  If  every  citizen  recognized  the  fallacy  of 
this  idea,  and  if  some  elementary  instruction  in 
such  matters  were  given  in  the  public  schools, 
even  at  the  sacrifice  of  clay  modelling  and  decora- 
tive art,  it  might  add  much  to  the  spirit  of  inde- 
pendence and  to  the  practical  efficiency  of  the 

43 


The  Prisoner  at  the  Bar 

coming  generation.  We  are  slaves  to  the  magic 
of  the  word  "police."  We  imagine  that  without 
a  representative  of  the  law  we  can  do  nothing. 

Of  course  we  know  in  general  that  we  may  de- 
fend the  persons  and  protect  the  property  of  our- 
selves and  others  by  the  exercise  of  reasonable 
force.  Beyond  this  rather  vague  principle  we 
are  not  prepared  to  go.  Where  the  situation 
offers  no  particular  inconvenience  we  are  ready 
to  do  our  part,  but  if  anything  disagreeable  is 
going  on  we  prefer  to  be  excused.  We  are  out 
of  the  habit  of  doing  the  simplest  police  duty. 
Most  of  us  would  have  enough  public  spirit  to 
summon  an  officer  if  a  felony  were  being  com- 
mitted before  our  very  eyes,  provided  we  could 
do  so  without  making  ourselves  ridiculous,  but 
few  of  us,  the  writer  fancies,  would  join  the  hue 
and  cry  after  a  pickpocket  unless  ours  happened 
to  be  the  pocket  he  had  picked.  We  leave  that  to 
those  whose  natural  bellicosity  is  greater  and  who 
do  not  object  to  being  undignified.  It  is  never- 
theless true,  however  unpleasant  the  thought  may 
be,  that  at  any  moment  we  may  find  ourselves  in 
the  centre  of  a  whirlpool  of  events  where  indi- 
vidual action  on  our  part  will  be  necessary  unless 
we  are  willing  to  allow  some  vicious  and  cruel 
violation  of  the  law  to  go  unpunished.  Such  exi- 
gencies may  run  all  the  way  from  the  malicious 

44 


The  Arrest 

beating  of  an  overloaded  horse  to  the  garrotting 
of  a  feeble  old  man.  Our  efficiency  on  such  occa- 
sions might  be  represented  by  a  fraction,  of  which 
our  physical  capacity  would  be  the  numerator  and 
our  disinclination  the  denominator,  but  obviously, 
to  make  the  formula  complete,  this  would  have 
to  be  multiplied  by  another  representing  our 
knowledge  of  our  rights. 

Suppose  for  example  that  Mr.  Ordinary  Citi- 
zen on  a  nocturnal  ramble  should,  at  about  three 
o'clock  in  the  morning,  observe  some  ill-favored 
person  with  a  heavy  bag  in  his  hand,  furtively 
making  his  exit  from  the  area  door  of  a  stylish 
mansion  in  the  residential  district.  What  should 
he  do?  What  would  you  do?  Without  discuss- 
ing this  embarrassing  question,  does  the  reader 
know  what  he  would  have  a  right  to  do?  The 
chances  are  largely  in  favor  of  his  being  obliged 
to  answer  this  question  in  the  negative.  Indeed, 
our  indifference  to  the  unexpected  is  so  great  that 
we  are  generally  mute  and  helpless  in  the  face  of 
any  unusual  situation  where  anybody's  rights  are 
concerned.  We  hesitate  to  act  without  the  advice 
of  counsel,  and  in  the  meantime  the  burglar  has 
made  his  escape ! 

In  the  State  of  New  York  and  generally  in  this 
country,  any  person,  whether  he  be  an  officer  of 
the  law  or  not,  may  make  an  arrest,  without  a 

45 


The  Prisoner  at  the  Bar 

warrant,  for  any  crime,  of  any  grade,  actually 
committed  in  his  presence.  It  makes  no  difference 
whether  the  offence  be  that  of  spitting  in  a  street- 
car or  murder  in  the  first  degree,  the  offender 
may  be  haled  before  a  magistrate  by  any  one  who 
has  seen  him  commit  it. 

But  the  statutes  governing  the  right  of  arrest, 
while  extensive  enough  to  safeguard  the  public 
interest,  are  carefully  limited  to  prevent  arbitrary 
interference  with  the  liberty  of  innocent  persons. 
The  law,  therefore,  makes  it  a  positive  condition 
that  before  any  one,  whether  he  be  citizen  or  offi- 
cer, may  arrest  another  for  a  felony  not  com- 
mitted in  his  presence  the  felony  must  in  fact  have 
been  committed.  Thus  the  right  to  apprehend  a 
suspected  wrong-doer  is  invoked  at  the  peril  of 
him  who  seeks  to  exercise  it.  If  no  felony  has 
been  committed  the  arrest  is  illegal. 

In  one  respect  only  does  the  law  recognize  any 
difference  between  the  private  citizen  and  the 
public  officer  paid  to  keep  the  peace, — if  a  felony 
has  in  fact  been  committed,  the  officer  may  arrest 
any  one  who  he  has  reasonable  ground  to  believe 
is  the  guilty  party,  while  a  citizen  may  arrest  only 
the  person  who  is  actually  guilty.  Thus  the  citi- 
zen must  guarantee  not  only  the  commission  of 
the  crime  but  the  identity  of  the  criminal,  while 
the  officer,  so  long  as  the  law  has  actually  been 


The  Arrest 

violated,  may  take  a  chance  as  to  the  identity  of 
the  perpetrator  of  the  offence. 

Now,  the  police  invariably  interpret  the  law  to 
mean  that  they  may  arrest  anybody  who  they 
have  reasonable  cause  for  believing  has  commit- 
ted a  felony, — but  of  course  the  statute  gives 
them  no  such  power.*  The  felony  must  have 
been  committed;  the  "reasonable  cause"  refers 
only  to  the  identity  of  the  criminal.  This,  how- 
ever, does  not  worry  the  average  policeman  at  all. 

He  sees  "Mr.  O.  C.Y'  burglar  coming  out  of 
the  area  with  his  bag,  promptly  pounces  upon 
him  and  hales  him  off  to  the  precinct  house  in 
spite  of  the  burglar's  protests  and  expletives.  If 
the  burglar  prove  refractory  he  is  clubbed  into 
submission,  or  if  he  attempt  to  run  he  may  be 
shot  in  the  leg.  Now  suppose  that  on  reaching 
the  police  station  the  burglar  turns  out  not  to  be 
a  burglar  at  all  but  the  family  doctor?  Or  a  late 

*An  attempt  has  apparently  been  made  by  the  legislature  of 
New  York  State  to  enlarge  the  powers  of  the  police  during  the 
nighttime  by  giving  them  authority  to  arrest  "on  reasonable 
suspicion  of  felony."  The  statute  (Penal  Code)  reads  as  fol- 
lows: "Section  179.  May  arrest  at  night,  on  reasonable  sus- 
picion of  felony. 

'(He  may  also,  at  night,  without  a  warrant,  arrest  any  person 
whom  he  has  reasonable  cause  for  believing  to  have  com- 
mitted a  felony,  and  is  justified  in  making  the  arrest,  though  it 
afterwards  appear  that  a  felony  had  been  committed,  but  that 
the  person  arrested  did  not  commit  it." 

This  statute  clearly  stultifies  itself.  The  writer  is  not  aware 
of  any  judkial  interpretation  of  its  meaning  up  to  the  present 
time. 

47 


The  Prisoner  at  the  Bar 

caller  upon  the  cook?  Or  a  gentleman  who  has 
mistaken  some  one's  else  area  for  his  own?  Of 
course  no  felony  has  been  committed.  The  po- 
liceman had  no  right  to  make  the  arrest.  As- 
suming that  the  house  had  been  burglarized,  the 
officer  beyond  a  doubt  had  reasonable  cause  for  a 
hastily  formed  opinion  that  the  man  in  the  area 
was  the  guilty  party  and  had  a  right  to  make  the 
arrest,  but  in  law  he  makes  this  assumption  at  his 
peril.  If  he  is  wrong  the  victim  has  a  good  cause 
of  action  against  the  policeman  for  false  arrest. 
But  the  execution  following  his  civil  judgment 
against  the  latter  will  probably  be  returned  nulla 
bona  by  the  sheriff,  and  he  will  have  to  pay  for 
his  own  medical  treatment  and  legal  advice. 

Now  let  us  see  in  what  position  is  O.  C.,  who 
is  not  a  peace  officer,  when  he  discovers  the  sus- 
picious figure  in  the  area.  He  may  lawfully  make 
an  arrest,  although  he  has  not  seen  the  crime 
committed,  "when  the  person  arrested  has  com- 
mitted a  felony."  In  other  words,  if  it  turns  out 
that  no  crime  has  occurred,  or  that  if  one  has  in 
fact  been  perpetrated  he  has  got  hold  of  the 
wrong  man,  he  will  have  to  patch  up  the  matter 
and  very  likely  his  own  head  as  best  he  can. 

We  will  assume  O.  C.  to  be  a  public-spirited 
citizen  and  that  he  forthwith  lays  hands  on  his 
burglar  and  reduces  him  to  subjection.  Having 

48 


The  Arrest 

done  so  he  rings  the  front  door  bell  and  rouses 
the  owner  of  the  house,  who  in  turn  discovers 
that  the  mansion  has  been  burglarized.  They 
then  investigate  the  prisoner  and  find  that  he  is  a 
commercial  traveller  in  an  advanced  state  of  in- 
toxication who  has  rambled  into  that  particular 
area  by  accident.  O.  C.  has  been  guilty  of  an 
illegal  arrest.  Even  should  it  prove  that  the 
intruder  was  in  fact  a  burglar,  but  not  the  right 
burglar,  the  arrest  would  still  have  been  without 
authority.* 

To  carry  the  illustration  a  little  further  let  us 
assume  that  in  each  case  a  burglary  has  been  com- 
mitted and  that  the  prisoner  is  the  guilty  party. 
What  can  the  officer  do,  and  what  can  UO.  C." 
do,  if  his  quarry  attempt  to  escape? 

Roughly  speaking,  a  person  lawfully  engaged 
in  arresting  another  for  a  felony  or  in  preventing 
the  escape  of  such  an  one  lawfully  arrested,  may 

*In  People  v.  Hochstim  (36  Misc.,  562,  571)  it  is  said  that  ''in 
the  matter  of  arresting  without  a  warrant,  whether  for  a  mis- 
demeanor or  for  a  felony,  a  private  citizen  and  a  peace  officer 
have  the  very  same  right  and  power  under  the  law,  namely:  (i) 
Either  may  without  a  warrant  arrest  a  person  who  commits 
any  crime,  whether  misdemeanor  or  felony,  in  his  view,  and 
(2)  either  may  without  a  warrant  arrest  any  person  who  has 
in  fact  committed  a  felony  although  not  in  his  view,  but  (3) 
neither  may  arrest  any  one  without  a  warrant  in  the  case  of  a 
felony  unless  the  alleged  felony  has  in  fact  been  committed. 
If  no  felony  has  in  fact  been  committed,  then  the  arrest  with- 
out a  warrant  is  in  every  case  unlawful  and  may  be  lawfully 
resisted.  The  law  does  not  justify  either  an  officer  or  a  private 
citizen  in  arresting  for  a  felony  without  a  warrant  on  mere 
suspicion  or  information  that  a  felony  has  been  committed.  If 

49 


The  Prisoner  at  the  Bar 

use  all  the  force  necessary  for  the  purpose,  even 
to  taking  the  life  of  the  prisoner.* 

It  is  by  virtue  of  this  salutary  provision  of  law 
that  the  unscrupulous  policeman  gets  "square" 
with  his  enemies  of  the  underworld.  When  the 
officer  clubs  the  "drunk"  on  the  corner,  it  is  on 
the  pretext  that  the  latter  is  "resisting"  arrest. 
It  is  practically  an  impossibility  to  prove  that  it 
was  not  justifiable  unless  there  be  eye-witnesses 
to  what  has  occurred,  and  an  officer  may  safely  be 
guilty  of  a  good  deal  of  physical  brutality  so  long 
as  he  brings  his  victim  to  the  station  house  under 
actual  arrest  for  some  alleged  offence.  It  is  only 

either  act  without  a  warrant  on  groundless  suspicion  or  informa- 
tion on  the  question  of  whether  a  felony  has  in  fact  been  com- 
mitted, he  acts  at  his  peril.  Nothing  but  the  absolute  fact  that 
the  felony  has  actually  been  committed  will  suffice  to  justify 
and  protect  the  person  making  such  an  arrest,  whether  an 
officer  or  a  private  citizen.  But  if  a  felony  has  in  fact  been 
committed,  the  law  does  justify  an  officer,  but  not  a  private 
citizen,  in  arresting  a  person  therefor  without  a  warrant  'on 
reasonable  cause  for  believing'  (to  quote  the  words  of  the 
statute)  that  such  person  is  the  one  who  committed  it.  In  a 
word,  an  officer,  the  same  as  a  private  citizen,  is  not  permitted 
to  act  on  mere  grounds  of  belief  on  the  question  of  whether 
a  felony  has  in  fact  been  committed;  nothing  but  the  absolute 
fact  that  it  has  been  committed  will  suffice;  but  an  officer  is 
permitted  to  act  on  reasonable  cause  for  belief  on  the  question 
of  whether  the  person  arrested  is  the  person  who  committed  it. 
All  of  this  is  plain  statute  law  (Code  of  Criminal  Procedure, 
sees.  177,  183)." 

*A  distinction  exists  in  this  respect  between  misdemeanors  and 
felonies.  In  the  case  of  the  former  it  is  not  lawful  to  kill  a 
prisoner  even  if  his  escape  cannot  otherwise  be  prevented,  and 
although  there  be  a  warrant  for  his  apprehension.  In  the  case 
of  a  felony  the  offender's  life  may  be  taken  provided  there  is 
absolute  necessity  for  so  doing  to  prevent  his  escape.  Coaraddy 
v.  People,  5  Park  234. 

50 


The  Arrest 

when  the  victim  of  such  an  assault  is  not  arrested 
that  the  officer  finds  himself  in  an  awkward  situa- 
tion. He  must  then  explain  why  he  clubbed  the 
citizen  unless  the  latter  had  committed  some 
offence  and  was  trying  to  resist  arrest,  and,  if  so, 
why  he  did  not  then  conduct  him  to  the  station 
house. 

There  is  a  story  told  of  an  old  veteran  upon 
the  force  who  was  heard  to  remark  to  a  com- 
panion as  they  left  court  together  after  the  ac- 
quittal of  an  ex-convict  on  the  charge  of  assault- 
ing the  officer: 

"Begorra,  Tom,  'twon't  be  long  before  I'll  be 
afther  arrestin'  the  cuss  agin,  and  whin  I  do, 
pray  God  that  he  resists  arrest!" 

It  is  said  that  in  some  of  the  southwestern 
states  the  personal  right  to  make  an  arrest  at 
times  resulted,  practically,  in  the  privilege  of 
shooting  cattle  thieves  upon  sight.  The  foreman 
would  send  out  Jack  to  "look  for"  cattle  thieves. 
Jack  would  lie  all  day  in  a  gully  and  when  Sonora 
Slim  hove  in  sight,  perhaps  on  an  entirely  lawful 
errand,  would  "let  him  have  it."  Then  he  would 
ride  leisurely  over,  abstract  Sonora's  "gun,"  dis- 
charge it  a  couple  of  times  and  throw  it  care- 
lessly upon  the  ground.  Half  an  hour  later  he 
would  appear  at  the  ranch. 

"Sorry,  Bill,"  he  would  report,  "but  I  caught 
51 


The  Prisoner  at  the  Bar 

Sonora  Slim  driving  off  three  of  our  two-year- 
olds.    I  headed  him  off  and  says, 

'  'Look  here,  Sonora,  youVe  got  some  of  our 
heifers  there.1 

'  'Go  to 11  says  Sonora  and  pulls  his  gun. 

"'That's  all  right/  says  I.  'You're  under 
arrest!* 

"We  swapped  a  few  shots  and  I  had  to  drop 
him  to  prevent  his  escape." 

"All  right,  Jack,"  the  foreman  would  reply, 
"we'll  ride  over  and  tell  the  sheriff  about  it." 

"See  here,  sheriff,"  he  would  announce  on  their 
arrival,  "Jack  here  arrested  Sonora  Slim  stealin' 
our  cattle,  and  the  feller  resisted  arrest  and  Jack 
had  to  shoot  him.  Jack's  here  if  you  want  him." 

"Yes,  sheriff,  here  I  am,"  Jack  would  say. 

The  sheriff  would  rub  his  forehead  and  reply : 

"No,  I  don't  want  you.  Sorry  you  had  to  kill 
him,  but  I'll  have  to  have  some  evidence  that 
what  you  say  ain't  true." 

It  may  be  well  to  suggest  that,  while  a  thor- 
ough knowledge  of  our  rights  is  always  desirable, 
it  by  no  means  follows  that  it  is  wise  to  invoke 
them  upon  every  occasion  when  we  observe  a 
technical  violation  of  the  law.  Regrettable  as  it 
may  seem,  no  police  force,  however  large,  could 
arrest  all  the  violators  of  every  law,  and  no  sys- 
tem of  courts  could  dispose  of  the  multitude  of 

52 


The  Arrest 

offenders.  We  do  the  best  we  can  and  make  an 
example  of  a  few,  hoping  thus  to  persuade  the 
others  to  be  good.  If  every  citizen  undertook  to 
exercise  his  right  of  arresting  every  individual 
whom  he  saw  committing  petty  crime,  the  busi- 
ness of  the  community  would  come  to  a  stand- 
still and  the  magistrates'  courts  would  be  hope- 
lessly congested  with  great  hordes  of  prisoners, 
irate  witnesses,  and  gratuitous  policemen.  The 
prisons  would  overflow  and  the  magistrates 
would  resign.  Moreover,  the  enforcement  of 
such  a  disused  and  unexpected  technical  right 
would  lead  to  immense  disorder  and  violence. 
The  ignorant  infractor  of  an  obscure  section  of 
the  Penal  Code  would  rise  in  his  wrath  and  in 
resisting  arrest  become  guilty  of  assault  in  the 
second  degree  or  of  manslaughter.  It  is  prob- 
ably very  much  better  that  trivial  offences  should 
go  unpunished  than  that  public  conveyances  and 
thoroughfares  should  be  made  the  scenes  of  vio- 
lent altercations  and  obstructive  volunteer  police 
work.  Having  hired  a  certain  class  of  persons 
to  attend  to  this  business  for  us,  it  is  better  to 
leave  it  to  them  when  possible.  We  need  the 
best  police  force  that  we  can  get,  and  this  natur- 
ally depends  upon  the  efficiency  of  the  higher 
poliee  officials  who  hold  their  offices  by  appoint- 
ment. An  active  interest  on  the  part  of  our  citi- 

53 


The  Prisoner  at  the  Bar 

zens  in  the  betterment  of  municipal  conditions 
through  the  purification  of  politics  is  probably 
more  to  be  desired  than  any  general  attempt  to 
participate  in  the  ordinary  duties  of  "the  man 
on  the  beat." 


CHAPTER  IV 

THE  POLICE  COURT 

THE  procedure  by  which  a  law-breaker  is 
convicted  for  his  offence  begins  with  his 
arrest  and  ends  with  the  formal  pronouncement 
of  sentence  against  him  after  he  has  been  de- 
clared guilty.  Prior  to  his  arrest  he  has  been 
merely  a  criminal;  after  sentence  (or,  to  be 
strictly  technical,  after  the  verdict  against  him) 
he  becomes  a  convict;  during  the  proceedings  he 
is  a  "prisoner  at  the  bar." 

Whatever  has  been  the  manner  of  his  arrest  he 
is  in  most  instances  taken  at  once  before  the 
nearest  magistrate  in  order  that  the  latter  may 
inquire  into  the  charge  against  him  and  determine 
whether  upon  the  evidence  there  is  reasonable 
cause  to  believe  him  guilty.*  If  the  arrest  takes 
place  after  four  o'clock  in  the  atfernoon,  or  no 
magistrate  happens  to  be  holding  court,  the  pris- 

*Of  course,  if  he  had  been  indicted  by  the  grand  jury  in  the 
first  instance,  he  is  arrested  on  a  "bench  warrant"  issued  by 
a  bench  of  the  General  Sessions  and  placed  in  confinement  with- 
out any  preliminary  examination. 

55 


The  Prisoner  at  the  Bar 

oner  is  locked  up  until  the  following  morning.* 
If  he  be  charged  with  a  felony  he  must  remain  in 
confinement  until  the  magistrate  admits  him  to 
bail,  for  no  police  official  can  fix  or  receive  bail 
in  such  cases;  if,  however,  he  has  been  arrested 
for  the  commission  of  a  misdemeanor  only,  the 
sergeant  on  duty  at  "the  desk"  must  fix  the  bail 
and  give  him  a  reasonable  opportunity  to  pro- 
cure it. 

If  arrested  while  a  police  court  is  in  session 
he  is  entitled  to  an  immediate  hearing,  and  to  the 
services  of  counsel,  for  whom  the  magistrate 
must  send,  free  of  charge,  through  an  officer. 
After  the  arrival  of  counsel  or  after  waiting  a 
reasonable  time  for  his  appearance,  the  magis- 
trate may  then  proceed  to  examine  into  the  case, 
and  can  only  adjourn  the  hearing  for  forty-eight 
hours  at  a  time  for  "good  cause,"  unless  at  the 
request  of  the  defendant  himself. 

The  subjects  of  the  rights  of  apprehended 
persons  is  too  extensive  to  be  adequately  treated 
in  a  few  pages.  The  power  which  the  magistrate 
may  arbitrarily  exercise  of  holding  persons  merely 
"suspected"  of  crime  for  further  examination  is 
very  great.  Where  a  prisoner  is  brought  in  under 

*This  condition  has  been  much  improved  in  New  York  City 
by  the  institution  of  the  "Night"  Court  in  which  one  magistrate 
is  always  on  duty.  All  minor  offenders  are  at  once  arraigned 
before  him,  no  matter  what  the  hour,  and  thus  may  be  dis- 
posed of  \vithout  undue  confinement. 

56 


The  Police  Court 

arrest  as  a  fugitive  from  another  State  he  is  fre- 
quently "held"  (without  any  formal  charge  being 
made  against  him)  for  several  days  at  the  mere 
telegraphic  request  of  some  police  official  in  a 
distant  city.  The  writ  of  habeas  corpus  may 
secure  his  release,  but  persons  unjustly  arrested 
on  "suspicion"  have  little  redress  in  ordinary 
cases,  whether  they  are  discharged  immediately 
or  held  for  long  periods.  While  no  technical 
authority  exists  for  such  detentions  (the  right  of 
arrest  being  strictly  limited  as  set  forth  in  the 
last  chapter)  they  are  practically  necessary  to 
prevent  the  escape  of  dangerous  criminals.  "Ar- 
rest on  suspicion"  is  a  euphemistic  description  of 
a  technically  illegal  proceeding,  which  is  univers- 
ally recognized  as  necessary  for  the  protection 
of  society.* 

The  police  court  is  the  great  clearing  house  of 
crime.  Inasmuch  as  all  persons  arrested,  whether 
innocent  or  guilty,  are  brought  there  together, 
they  should  naturally,  so  far  as  possible,  be  ac- 
corded the  benefit  of  the  doubt  as  to  their  guilt  in 
the  treatment  which  they  receive.  They  are  pre- 

*"Many  persons  are  arrested  under  suspicious  circumstances, 
such  as  well-known  criminals  mysteriously  loitering  about  the 
streets  at  night,  or  frequenting  crowded  places,  or  persons  hav- 
ing property  in  their  possession  for  which  they  can  give  no  good 
account,  nor  of  themselves.  Frequently  such  an  arrest  is  the  first 
step  in  the  detection  of  some  crime  in  which  (after  investiga- 
tion), if  the  proper  compiaint  is  found,  a  formal  complaint  is 
taken,  and  the  prisoner  is  held  for  trial.  In  many  instances  such 
an  arrest  prevents  the  commission  of  crime." 

57 


The  Prisoner  at  the  Bar 


sumed  to  be  innocent,  and  indeed  many  of  them 
are,  until  a  jury  has  declared  to  the  contrary. 
However,  the  attitude  generally  taken  towards  a 
prisoner  in  a  police  court  is  that  he  is  guilty  and 
that  it  is  useless  for  him  to  deny  it,  and  he  feels 
the  discomfort  and  ignominy  of  his  position  far 
more  at  this  state  of  the  proceedings  than  he  does 
later,  when  he  is  accorded  more  individual  im- 
portance. As  a  rule  he  is  brought  into  a  crowded, 
stuffy  court  where  a  vociferous  pair  of  shyster 
lawyers  are  shouting  at  each  other's  witnesses  and 
the  magistrate  is  with  difficulty  trying  to  preserve 
order.  A  great  throng  of  complainants,  defend- 
ants, witnesses,  policemen,  lawyers  and  idlers 
fill  the  room,  and  the  prisoner  instantly  becomes 
the  centre  of  vision  for  all  eyes  as  the  officer  leads 
him  up  to  the  clerk's  desk  and  makes  his  formal 
accusation.  The  altercation  in  front  of  the  mag- 
istrate is  suspended  long  enough  for  the  latter  to 

Comparison  with  Previous  Years 


NUMBER  AR 

RAIGNED  AND  1 

DISCHARGED 

YEAR. 

Males. 

Females. 

Total. 

!8g6                   

2  335 

I2O 

2,455 

1,756 

129 

1,885 

1898   

1,628 

154 

1,782 

2,033 

301 

2,334 

2.O23 

"*    293 

2,316 

2,066 

197 

2,263 

I9O2  

2,337 

200 

2,537 

IOX>3                                                 

2,634 

US 

2,749 

3.734 

224 

3,958 

3,551 

231 

3.782 

5,483 

1  80 

5,663 

IQ07  

2)656 

1x8 

2.774 

58 


The  Police  Court 

"commit"  the  defendant,  who  instantly  finds  him- 
self locked  in  a  narrow  cell  where  he  must  re- 
main until  some  friend  or  relation  has  had  an 
opportunity  to  reach  a  lawyer,  secure  a  bond- 
man, and  compass  his  release. 

What  he  must  naturally  feel  most  is  his  own 
insignificance.  He  is  merely  one  of  a  huge  mul- 
titude of  miserable  people  who  are  all  in  the 
same  box.  The  hours  until  his  lawyer  arrives  are 
very  dark  indeed, — particularly  as  he  probably 
has  no  idea  of  what  is  going  to  happen  to  him  in 
the  meantime.  If  he  be  a  poor  man  accused  of 
drunkenness  or  disorderly  conduct  he  may  be, 
and  frequently  is,  sent  to  the  island  before  he 
has  any  adequate  opportunity  to  notify  his  fam- 
ily, who  may  suffer  an  agony  of  anxiety  before 
they  discover  what  has  become  of  him.  The 
punishment  of  the  minor  offender  for  trifling 
breaches  of  the  peace  is  not  only  swift,  but  is 
characterized  by  a  certainty  unknown  to  that 
which  the  law  attaches  to  crimes  of  a  higher 
order. 

The  police  court  has  sometimes  been  termed 
"The  Poor  Man's  Court  of  Appeals."  So  far 
as  this  implies  that  five  out  of  every  seven  de- 
fendants arraigned  there  are  summarily  disposed 
of  and  accept  the  decision  or  sentence  of  the  pre- 
siding judge  as  final,  and  that  the  same  number 

59 


The  Prisoner  at  the  Bar 

of  aggrieved  persons  who  seek  justice  there  do 
the  same,  it  is  a  correct  description.  No  court 
has  a  more  direct  influence  for  good  or  evil,  or 
for  the  creation  of  a  respect  or  a  disregard  for 
law.  For  an  overwhelming  majority  of  our  citi- 
zens, particularly  those  of  foreign  birth  or  ex- 
traction, it  is  the  only  court  of  justice  in  exist- 
ence.* 

There  may  be  higher  courts  or  higher  laws, 
but  they  know  them  not.  To  them  the  magistrate 
is  an  autocrat.  They  are  avenged  or  punished 
by  virtue  of  his  will  alone,  and  as  he  is  just  or 
unjust,  honest  or  corrupt,  so  do  they  come  to 
regard  American  institutions  as  a  whole.  The 
officers  of  the  precinct  are  his  minions,  only  a 
little  lower  in  majesty,  and  even  more  terrible 
and  implacable. 

When  it  is  considered  that  the  magistrates  in 
the  first  division  of  the  City  of  New  York 
(namely,  the  Boroughs  of  Manhattan  and  the 
Bronx)  alone  disposed  of  138,047  cases  in  the 

*The  nativity  of  the  persons  held  for  trial  in  1907  or  sum- 
marily tried  and  convicted  in  magistrates'  courts  was: 

United  States 30,361 

Ireland 8,061 

Germany    4,219 

England    1,044 

Scotland 473 

France    869 

Italy    8,243 

Russia    9,354 

Greece    3,039 

Other  countries   5,790 


Total 71,253 

60 


The  Police  Court 

year  1907,  and  that  in  104,622  of  these  they 
exercised  a  summary  jurisdiction  over  the  liberty 
of  the  prisoner,  with  power  in  many  instances  to 
inflict  severe  punishment,  it  will  be  seen  that  the 
importance  of  these  courts  cannot  be  easily  over- 
rated. Including  the  defendants  arraigned  in 
the  "Children's  Court"  and  before  certain  judges 
of  the  Special  Sessions  sitting  as  magistrates, 
there  were  149,494  persons  arrested  during  1917 
in  New  York  County  alone. 

The  summary  jurisdiction  of  the  police  judge 
embraces  all  offences  classed  as  "disorderly  con- 
duct,'* violations  of  so-called  "corporation  ordi- 
nances" (such  as  peddling  without  a  license,  etc.), 
infractions  of  the  "Sabbath  law,"  the  disposition 
of  persons  alleged  to  be  insane,  vagrancy,  and 
the  offence  (not  recognized  by  any  statute)  of 
being  a  "suspicious  person."  Any  person  whom 
the  magistrate  finds  guilty  of  any  of  these  charges 
(except  the  last)  he  may  fine  or  imprison.  It  is 
quite  true  that  the  defendant  may,  if  convicted, 
take  an  appeal  to  the  Court  of  General  Sessions 
or  test  the  jurisdiction  of  the  magistrate  by  a 
writ  of  habeas  corpus,  but  the  grounds  of  appeal 
are  few,  and  the  victim  rarely  is  aware  or  advised 
of  his  rights  in  this  respect.  Even  were  he  fully 
informed,  his  purse  would  not  usually  permit  of 
further  proceedings,  unless  taken  for  him  from 

61 


The  Prisoner  at  the  Bar 

charity  by  some  outside  party  or  organization. 
The  fact  that  there  were,  out  of  this  multitude 
of  cases,  but  one  hundred  and  fifty-nine  appeals 
taken  (of  which  only  seventy-seven  were  success- 
ful) speaks  for  itself. 

Besides  those  charged  with  the  offences  over 
which  the  magistrate  has  final  jurisdiction,  before 
him  come  all  persons  arrested  for  crimes  which 
are  triable  in  higher  courts.*  These  persons  he 
must  "hold  for  trial"  (either  for  the  court  which 
tries  misdemeanors  or  for  the  grand  jury)  or 
discharge.  Should  he  have  reasonable  ground 
to  believe  that  the  accused  has  committed  the 
crime  alleged  he  is  obliged  by  law  to  "hold"  him, 
but  if  the  judge  sees  fit  to  discharge  the  prisoner, 
the  aggrieved  person  has  no  appeal  and  his  only 
alternative  is  to  try  to  persuade  the  district  at- 
torney in  spite  of  the  decision  of  the  magistrate 
to  take  personal  action  either  by  laying  the  mat- 
ter before  the  grand  jury,  or  in  cases  of  misde- 
meanors by  filing  an  information  in  the  Court  of 
Special  Sessions.  He  is  usually  unaware  of  this 
possibility  and  at  all  events  it  is  a  difficult  pro- 
ceeding, so  that  even  in  the  case  of  crimes  in 
which  the  magistrate  has  not  a  final  jurisdiction, 
his  action,  so  far  as  setting  free  the  prisoner  is 

*In  1905  the  number  of  persons  so  held  in  New  York  County 
by  the  magistrates  of  the  first  division,  was  36,340. 

62 


The  Police  Court 

concerned,  is  generally  a  conclusion  of  the  mat- 
ter. When  a  police  judge  unwarrantably  dis- 
charges a  prisoner  accused  of  a  felony  the  com- 
plainant rarely  takes  any  further  steps  to  get 
justice. 

The  enormous  power  wielded  by  what  people 
are  accustomed  to  call  "mere  police  judges"  is 
obvious  when  we  realize  that  one  of  them  may 
send  a  woman  to  a  reformatory  for  three  years, 
and  boys  to  similar  institutions  for  the  same 
period.  Their  jurisdiction  is,  however,  strictly 
confined  to  certain  classes  of  offences;  and  if, 
for  example,  the  crime  charged  be  "larceny"  in 
any  form  they  are  compelled  to  hold  the  de- 
fendant for  the  action  of  a  higher  court  even  if 
he  admit  his  guilt.  Thus  a  vagrant  who  is  caught 
begging  can  be  sent  away  for  six  months,  but  if 
the  same  man  steal  an  old  rug  from  a  door-step 
or  a  gunny-sack  from  a  wagon  he  must  willy  nilly 
be  sent  to  the  Tombs  to  await  a  trial  in  Special 
Sessions.  Now,  in  any  case  where  he  is  going 
to  plead  guilty  he  would  probably  vastly  prefer 
to  have  his  case  disposed  of  by  the  magistrate 
and  have  done  with  it. 

There  would  seem  to  be  good  reason  for  be- 
lieving that  coincident  with  other  reforms  in  the 
magistrates'  courts  their  original  jurisdiction 
might  well  be  extended  to  cases  of  petit  larceny 

63 


The  Prisoner  at  the  Bar 

where  the  defendant  admits  the  commission  of 
the  offence.  A  deal  of  time,  money,  and  incon- 
venience to  the  prisoner  might  be  saved.  The 
present  situation  results  in  a  tendency  on  the  part 
of  the  judge  to  construe  as  many  cases  as  he  can 
of  "petit  larceny"  into  "disorderly  conduct.*' 
Very  often  a  trivial  theft  is  accompanied  by  acts 
which  make  it  perfectly  proper  for  the  magis- 
trate to  overlook  the  larceny  for  the  disorder. 
Certainly  it  is  better  for  the  offender,  where  pos- 
sible, to  be  classed  as  a  "disorderly"  rather  than 
a  thief.  In  the  latter  case  he  may,  with  the 
stigma  thus  fastened  upon  him,  go  forth  to  a  life 
of  crime ;  in  the  first  he  would  never  be  regarded 
as  a  criminal.  This  jurisdiction  to  punish  any 
act  or  pmission  tending  to  create  a  breach  of  the 
peace  offers  a  boundless  opportunity  for  an  arbi- 
trary judge  to  arrogate  to  himself  powers  which 
an  ignorant  or  helpless  offender  can  hardly  be 
expected  successfully  to  defy.  If  illegally  "com- 
mitted" his  only  redress  is  a  writ  of  habeas  cor- 
pus, which  probably  is  a  phrase  entirely  unintelli- 
gible to  him  and  which  will  cost  more  money  to 
procure  than  he  has  ever  had  at  any  one  time  in 
his  existence. 

The  magistrates  might  also  be  given  jurisdic- 
tion to  impose  punishment  in  all  cases  of  "simple 
assault,"  and  in  certain  cases  even  of  assaults 


The  Police  Court. 

with  weapons.  There  is  no  particular  reason 
why,  if  the  magistrate  can  send  an  old  woman 
away  for  begging,  or  for  being  drunk  of  a  Satur- 
day night,  he  cannot  be  trusted  to  punish  her 
properly  for  hitting  her  husband  over  the  head 
with  a  hot-water  kettle.  Moreover,  the  magis- 
trate before  whom  the  damaged  party  hales  the 
offender  is  able  to  see  with  his  own  eyes  the  ac- 
tual extent  of  the  injuries  which  have  been  in- 
flicted, whereas,  by  the  time  the  case  is  tried 
before  the  judge  of  the  Sessions,  Dame  Nature 
has  usually  restored  the  victim's  battered  physi- 
ognomy to  its  pristine  condition  of  refined  ele- 
gance. 

No  one  could  fail  to  profit  by  a  day  spent  upon 
the  police-court  bench  watching  the  judge  exercise 
his  many  diverse  yet  not  inconsistent  duties, 
which  variously  include  those  of  magistrate,  law- 
yer, clergyman,  almoner,  arbitrator  of  domestic 
difficulties,  and  general  adviser.  He  will  begin 
his  day's  work,  which,  before  it  be  concluded, 
will  have  required  him  to  pass  upon  anywhere 
from  fifty  to  eighty  cases,  by  disposing  of  a  long 
line  of  drunks  and  disorderlies  of  both  sexes. 
Justice  is  plentifully  tempered  with  mercy,  how- 
ever, and  the  unpleasant  business  is  soon  over. 
Next  comes  the  disposition  of  unfinished  busi- 
ness, which  includes  the  continuance  of  trials  not 

65 


The  Prisoner  at  the  Bar 

concluded  on  the  preceding  court  day.  These,  of 
course,  embrace  every  possible  offence  known  to 
the  law.  The  extraordinary  number  of  petty 
burglaries  is  sure  to  attract  the  attention  of  the 
spectator.*  Boy  after  boy  is  brought  to  the  bar 
charged  with  breaking  into  a  tobacco  shop'  or  a 
small  grocery,  or  a  room  used  for  the  storage  of 
merchandise,  push-carts  or  fruit.  At  the  very 
outside  the  value  of  the  plunder  cannot  exceed  a 
few  dollars. 

One  defendant,  his  head  heavily  bandaged,  (is 
half  carried  to  the  bar  by  a  husky  officer  and 
charged  with  attempting  to  burglarize  the  shed 
adjoining  Isadore  Aselovitch's  junk  store.  He  is 
clearly  much  the  worse  for  a  severe  clubbing. 
"Izzy,"  the  complainant,  exhibiting  an  iron  bar 
several  feet  in  length  and  weighing  upwards  of 
twenty  pounds,  proudly  claims  to  have  effected 
the  arrest  of  the  defendant  by  merely  giving  him 
"a  little  poke  mit  it."  In  response  to  the  inter- 
rogatories of  the  magistrate,  Izzy  explains  that 
he  and  another  kept  their  junk  in  a  certain  rear 
room  and  from  time  to  time  noticed  that  various 
odd  pieces  of  iron  seemed  to  be  missing.  They 
thereupon  concealed  themselves  behind  a  pile  of 
old  push-cart  wheels  and  waited  for  the  thief. 

*During  1907  there  were  arrested  1,669  persons  on  charges 
of  burglary,  of  whom  1,055  were  held  for  trial. 

66 


The  Police  Court 

After  several  hours  of  inactivity  they  finally 
heard  a  rattling  among  the  iron  and  discovered 
the  defendant  apparently  in  the  very  act  of  steal- 
ing a  crowbar.  Being  upon  his  hands  and  knees 
he  was  unable  to  offer  any  effectual  resistance  to 
their  combined  onslaught  and  barely  succeeded 
in  escaping  with  his  life.  His  cries  had  brought 
an  officer  who  had  arrested  him,  upon  Izzy's  com- 
plaint, for  attempted  burglary.  The  defendant 
in  turn  had  charged  the  two  with  felonious  as- 
sault, alleging  that  he  had  a  right  to  be  in  the 
store-room,  inasmuch  as  he  was  accustomed  to 
leave  junk  there  himself.  He  further  tearfully 
asserts  that  he  is  a  rival  of  Izzy's  in  the  push- 
cart business,  which  accounts  for  the  extreme 
animosity  of  the  latter. 

"It  vas  a  lie,  your  honor,  chuge,"  urges  Izzy. 
"Dot  man  vas  a  purglar.  He  ain't  got  no  push- 
cart. Gif  him  ten  years,  chuge !" 

The  judge,  who  is  wise  in  his  generation,  fines 
"the  burglar"  three  dollars  for  disorderly  con- 
duct, to  the  intense  disgust  of  Izzy. 

"Tree  dollars!"  he  cries  with  a  fine  scorn. 
"Tree  dollars  for  a  purglar !  /  vould  be  a  purg- 
lar myself  for  tree  dollars!" 

Very  likely  the  next  case  will  be  that  of  a 
small  merchant  charged  with  obstructing  the  side- 
walk with  his  boxes.  He  is  let  off  with  a  warning 

67 


The  Prisoner  at  the  Bar 

or,  if  it  be  a  second  offence,  with  a  small  fine. 
Then  a  couple  of  boys  will  be  brought  in  charged 
with  "shooting  craps,"  and  on  their  heels  a  half- 
drunken  driver  who  is  accused  by  a  little  girl 
(having  on  an  S.  P.  C.  A.  badge)  of  driving  an 
overloaded  horse.  The  crap  boys  are  let  go,  but 
as  the  ucop"  agrees  with  the  little  girl  that  the 
driver  was  abusing  his  horse  the  latter  is  "held" 
for  Special  Sessions. 

While  these  matters  are  being  attended  to  a 
great  uproar  is  heard  and  a  large  crowd  forces 
its  way  into  the  court-room.  Above  the  clamor 
the  wails  of  a  young  Jewess  make  themselves  dis- 
tinctly audible.  The  judge  has  just  ordered  the 
drunken  driver  locked  up  and  is  all  ready  to  take 
up  the  new  case.  The  defendant,  a  slick,  pale- 
faced  young  Hebrew,  loudly  proclaims  his  inno- 
cence and  demands  an  immediate  hearing.  No 
time  is  lost,  for  the  parents  of  the  girl  have  pro- 
cured a  lawyer  who  at  once  causes  a  charge  of 
robbery  to  be  entered.  The  girl,  hysterically 
weeping,  tells  her  story.  Up  to  a  certain  point 
it  is  lucid  enough.  She  had  been  walking  along 
the  street  when  a  nice-looking  young  "feller" 
had  accosted  her  and  inquired  the  way  to  the 
nearest  pawnbroker's.  While  they  were  convers- 
ing pleasantly  upon  this  subject  a  second  young 
gentleman  had  joined  them  and  asked  the  first 

68 


The  Police  Court 

to  purchase  a  pair  of  beautiful  diamond  earrings 
which  he  exhibited.  This  the  other  regretfully 
had  explained  he  could  not  do,  since  he  had  no 
money  (being  even  then  on  the  way  to  the  pawn- 
broker's). The  diamonds  had  glistened  and 
sparkled  in  the  sunlight.  The  girl  had  asked  to 
look  at  them  and  while  she  was  doing  so  the 
owner  had  suggested  that  perhaps  she  might  like 
to  purchase  them  herself,  giving  as  part  of  the 
consideration  her  own  modest  little  baubles. 
This  tempting  offer  she  says  she  refused,  on  the 
ground  that  she  did  not  know  the  young  gentle- 
man. She  then  rapidly  states  that  the  two  set 
upon  her,  struck  her,  and  that  she  "knew  no 
more,"  until  on  recovering  her  senses  she  found 
that  her  own  earrings  had  disappeared  and  that 
those  of  the  stranger  were  in  her  ears. 

"Hm!"  says  the  magistrate;  "and  do  you  say 
that  the  defendant  struck  you?" 

"Shure,  your  honor,"  replies  the  young  lady. 

"And  that  you  fainted?" 

"Shure,  your  honor." 

"Did  you   fall?"   inquires  the  judge  sharply; 

"N — n — no,"  admits  the  complainant. 

"Defendant  discharged,"  announces  the  mag- 
istrate. 

"Get  out  of  here,  all  of  you,"  orders  the  officer 
at  the  bridge.  "Get  along,  now!" 


The  Prisoner  at  the  Bar 

The  explanation,  as  the  reader  already  guesses, 
is  simply  that  by  a  time-honored  trick  the  girl 
has  been  persuaded  by  an  oily-tongued  trickster 
to  exchange  her  own  earrings  for  his  worthless 
ones.  This  she  has  done  quite  voluntarily.  She 
has  then  hurried  home  only  to  find  that  her  newly 
acquired  gems  are  paste.  The  family  goes  into 
a  paroxysm  of  anger  and  lamentation.  The  near- 
est lawyer  is  consulted,  who,  of  course,  agrees  to 
secure  the  return  of  the  earrings.  They  pay 
him  a  five-dollar  fee,  the  defendant  is  sought  for 
and  arrested,  and  in  her  eagerness  to  see  him 
punished  and  to  obtain  her  property  the  victim 
swears  away  her  own  case.  Probably  had  she 
told  the  truth  the  defendant  could  have  been 
"held"  for  grand  larceny  by  false  pretences. 

These  proceedings  may  no  sooner  be  concluded 
than  perchance  a  giant  negro  is  brought  in 
charged  with  assault.  A  dozen  officers  bring  him 
manacled  to  the  bar,  while  a  crowd  of  reporters 
follow  and  gather  on  each  side,  notebook  in  hand. 
It  appears  that  the  prisoner  suddenly  ran  out  of 
a  saloon,  drew  a  revolver  and  began  an  indiscrim- 
inate shooting.  The  "reserves"  were  called  out 
and  three  policemen  now  lie  dangerously  wounded 
in  the  hospital.  He  is  held  for  examination, 
pending  a  possible  inquest  by  the  corner. 

Meantime  a  lank  youth  from  New  Jersey 
70 


The  Police  Court 

listens  vacantly  while  an  officer  accuses  him  of 
abandoning  a  horse  which  has  suddenly  expired 
while  harnessed  to  the  defendant's  truck  wagon. 
He  pays  a  fine  and  vanishes.  Two  young  Irish- 
Americans,  mutually  damaged,  are  arraigned  for 
"disorderly  conduct."  They,  too,  are  fined,  be- 
ing already  substantially!  punished — by  each 
other.  A  man  accused  of  "Sunday  selling"  fol- 
lows a  woman  who  tells  a  pitiful  tale  of  how  her 
husband  has  abandoned  her  and  her  five  little 
ones.  Later  in  the  day  the  husband  is  found  and 
ordered  to  pay  her  ten  dollars  per  week.  Two 
retail  milk  dealers  charged  with  adulteration  or 
"keeping  a  cow  in  an  unhealthy  place,"  a  band 
of  pickpockets  who  have  been  caught  "working" 
a  horse-car,  a  woman  accused  of  "soliciting,"  and 
a  bartender  who  has  allowed  a  "slot  machine"  to 
be  left  upon  the  premises,  give  place  to  a  vocifer- 
ous store-keeper  who  has  caused  the  arrest  of  a 
very  stout  man  for  the  larceny  of  four  pairs  of 
trousers.  He  explains  loudly  that  the  defendant 
(who  weighs  at  least  325  pounds)  came  into  the 
store,  asked  to  see  some  "pants,"  and  while  the 
clerk  was  not  looking  stuffed  four  pairs  of  these 
articles  inside  his  waistband  and  made  his  escape. 
The  complainant  not  only  identifies  the  defendant 
with  absolute  certainty  but  goes  so  far  as  to  state 
with  equal  positiveness  that  the  accused  now  has 


The  Prisoner  at  the  Bar 

on  the  very  trousers  into  which  he  stuffed  the 
stolen  property.  Four  pairs  identical  in  size  and 
material  with  those  alleged  to  have  been  pur- 
loined are  produced  and  marked  in  evidence. 
The  fat  man  indignantly  denies  having  been  in 
the  store  at  all.  The  reporters  are  interested. 

"Gentlemen,"  says  the  judge,  "I  appoint  you 
a  committee  to  conduct  the  defendant  to  my  pri- 
vate room  for  the  purpose  of  determining 
whether  or  not  you  can  stuff  these  articles  of  ap- 
parel inside  his  waistband." 

The  reporters,  followed  more  slowly  by  the 
perspiring  defendant,  make  their  way  to  a  back 
room,  from  which  they  presently  emerge  to  an- 
nounce through  their  spokesman  that  it  would 
be  impossible  to  thrust  any  object,  much  less  four 
pairs  of  trousers,  inside  the  band  of  the  defend- 
ant's trousers. 

In  the  interim  the  judge  has  been  settling  ma- 
trimonial difficulties,  giving  all  sorts  of  gratui- 
tous legal  advice,  acting  as  arbitrator  over  the 
question  of  the  mutual  use  of  the  "landings"  on 
the  stairs  in  tenement  houses,  issuing  warrants, 
and  endeavoring  to  find  an  opportunity  to  con- 
tinue the  hearing  in  a  complicated  "false  label" 
case.  In  this  last  several  rather  well-known  at- 
torneys are  retained,  who  stand  about  disgust- 
edly while  the  more  immediate  business  of  the 

72 


The  Police  Court 

court  is  being  attended  to.  In  most  cases,  how- 
ever, the  lawyers  are  hardly  likely  to  add  to  the 
general  reputation  of  the  profession  for  ability. 
The  inordinate  number  of  cases  which  the 
magistrates  have  to  dispose  of  results  oftentimes 
in  an  inconclusive  method  of  hearing  charges  of 
misdemeanors  or  of  felonies,  which,  if  the  de- 
fendant be  held  at  all,  must  of  necessity  be  tried 
in  a  higher  court  or,  as  the  magistrates  say,  ugo 
downtown."  If  the  defendant  be  a  man  of  some 
influence.,  with  enough  money  to  retain  a  boister- 
ous and  bully-ragging  lawyer,  the  line  of  least 
resistance  may  lead  the  judge  almost  uncon- 
sciously to  regard  the  case  as  having  "nothing  in 
it."  "If,  on  the  other  hand,  the  complainant  be  a 
man  of  independence  and  insistence,  with  per- 
haps a  bit  of  a  pull,  it  is  much  easier  to  "hold" 
a  defendant  than  to  assume  the  responsibility  of 
"turning  him  out."  In  point  of  fact  some  magis- 
trates are  prone  to  shift  the  responsibility  off 
their  own  shoulders  and  to  "hold"  anyway.  Thus 
there  can  be  "no  kick  coming"  so  far  as  they  are 
concerned.  There  are  also  cases  where,  rather 
than  take  the  time  for  a  careful  examination  of 
the  case,  the  magistrate  will  "hold,"  when,  if  he 
had  really  examined  into  it  with  the  necessary 
care,  he  would  find  that  there  was  no  reasonable 
ground  for  his  action.  Now  the  grand  jury  is 

73 


The  Prisoner  at  the  Bar 

apt  to  find  an  indictment  almost  as  a  matter  of 
course,  and  the  defendant  must  then  be  placed 
on  trial  before  a  petit  jury.  In  large  measure 
this  is  the  reason  why  the  calendars  of  the  crim- 
inal courts  are  crowded  with  cases  which  should 
never  have  gone  beyond  the  police  court,  and 
why  prisoners  charged  with  homicide  often  lie 
for  months  in  the  Tombs  before  the  petty  busi- 
ness of  the  General  Sessions  can  be  cleaned  up 
sufficiently  to  allow  time  for  their  trial.  In  this 
way  much  of  the  work  which  should  be  done  by 
the  police  judge  is  cast  upon  the  already  over- 
burdened petit  jury.  The  evil,  however,  does 
not  stop  there.  When  a  petit  jury  finds  that  a 
majority  of  the  cases  brought  before  it  have  little 
or  no  merit  it  frequently  gets  the  idea  that  all 
criminal  business  is  of  the  same  character  and 
that  it  is  empanelled  for  the  purpose  of  a  general 
jail  delivery.  After  a  jury  has  "turned  out11 
twenty  men  in  succession  it  can  hardly  be  blamed 
for  thinking  that  the  twenty-first,  who  may  be  a 
real  sinner,  ought  likewise  to  be  sent  home  with 
the  others  to  join  his  family.  Respect  for  the 
law  cannot  be  maintained  unless  each  part  of  the 
machine  of  justice  does  its  full  duty  and  assumes 
its  own  burdens  and  responsibilities. 

It  goes  without  saying  that  no  official  comes 
into  closer  contact  with  the  police  than  the  magis- 

74 


The  Police  Court 

trate.  He  gets  to  know  them  collectively  and 
individually  as  no  other  person  can.  In  determ- 
ining what  should  be  done  in  any  given  case  he 
takes  largely  into  consideration  the  personal 
equation  of  the  officer  making  the  arrest.  He  is 
able  to  detect  exaggerated  or  manufactured  evi- 
dence, which  might  easily  pass  as  truth  and  per- 
haps convince  a  jury  in  a  higher  court.  Hence 
one  of  the  arguments  for  giving  him  a  wider 
original  jurisdiction.  Petit  juries  are  ordinarily 
disinclined  to  convict  and  send  a  man  to  State's 
prison  in  what  seems  to  them  trivial  cases.  If 
the  magistrate  had  a  wider  scope  in  the  disposal 
of  such  cases  one  of  the  principal  reasons  for  our 
lack  of  respect  for  law  (the  sentimental  and  ar- 
bitrary action  of  juries)  would  be  largely  done 
away  with. 

The  magistrate,  if  he  be  the  right  kind  of  a 
man,  can  do  more  real  good,  right  more  real 
wrongs,  and  exert  a  more  wholesome  and  salu- 
tary influence  upon  the  working  people  of  large 
cities  than  any  benevolent  or  charitable  associa- 
tion. He  can  do  much  to  break  up  the  alliance 
of  the  police  with  crime  and  to  prevent  arbitrary 
acts  of  violence  and  lawlessness  upon  their  part 
committed  either  to  compel  the  payment  of  black- 
mail or  cover  the  derelictions  of  duty. 

The  police  judge  also  soon  learns  the  character 
75 


The  Prisoner  at  the  Bar 

of  the  practitioners  who  appear  so  constantly  be- 
fore him.  Many  a  case  which  on  its  face  seems 
founded  on  justice  may  be  shown  by  a  little  ques- 
tioning on  the  part  of  the  magistrate  to  be  noth- 
ing but  an  attempt  to  uhold  up"  or  injure  the 
defendant.  The  quasi-criminal  classes  know  well 
the  power  of  the  criminal  law  and  frequently  in- 
vite it  to  secure  private  vengeance.  When  two 
rogues  fall  out  there  is  often  a  race  to  see  who 
can  get  to  the  police  court  first.  In  other  cases 
the  dense  ignorance  of  complainant  or  defendant 
renders  justice  almost  impossible.  The  shyster 
plays  upon  this  to  his  profit.  There  is  a  story 
told  of  a  practitioner  with  a  large  Italian  follow- 
ing who  was  accustomed  to  display  prominently 
upon  a  table  in  his  office  a  small  Testament  and 
a  huge  Webster's  Dictionary.  After  his  clients 
had  stated  their  case  he  would  turn  to  them  and 
ask: 

"Do  you  wish  the  law  from  the  big  book  or 
the  little  book?" 

The  clients  would  inquire  the  relative  cost. 

"The  law  from  the  little  book  is  ten  dollars — 
the  law  from  the  big  book  is  twenty-five  dollars." 

The  clients  would  consult  together  and  on  the 
assumption  that  the  bigger  the  book  the  better 
the  law,  would  almost  invariably  pay  their  twen- 


The  Police  Court 

ty-five  dollars  and  procure  the  best  advice  which 
Noah  Webster  could  give. 

The  fact  that  most  police  magistrates  arc  ap- 
pointed for  purely  political  reasons  is  much  to  be 
deprecated.  The  days  of  bribery  are  over,  but 
occasionally  the  public  has  some  excuse  for  be- 
lieving that  the  desire  to  do  ua  favor"  for  a 
political  friend  may  have  influenced  the  action  of 
one  of  them.  This  would  have  less  color  were 
they  usually  appointed  for  some  other  and  better 
reason  than  mere  party  fealty.  Ordinarily  the 
appointment  goes  to  some  faithful  worker,  who 
has  won  distinction  in  ward  politics.  Like  enough 
he  may  make  an  excellent  judge.  At  any  rate  he 
has  a  direct  personal  knowledge  of  the  people 
with  whom  he  is  called  to  deal.  He  has  equally 
first-hand  information  of  local  conditions  and  the 
personnel  of  the  police  attached  to  the  neighbor- 
ing precincts.  His  judgment  is  apt  to  have  a 
practical  wisdom  that  a  mere  student  of  law 
could  never  achieve.  He  knows  a  crooked  offi- 
cer, a  crooked  lawyer,  and  a  crooked  complainant 
when  he  sees  one.  Whatever  the  verbal  testi- 
mony happens  to  be  he  may  very  well  "know 
different."  He  is,  as  the  slang  phrase  accurately 
puts  it,  "wise  to  his  job."  And  when  all  is  said 
and  done  the  "influence"  exerted  upon  him  will 
probably  be  only  a  request  to  "Do  the  best  you 

77 


The  Prisoner  at  the  Bar 

can  for  So  and  So, — he's  a  friend  of  mine,"  whicK 
will  not  affect  his  action  in  the  least.  A  college- 
bred  lawyer  with  no  actual  knowledge  of  existing 
conditions  might  have  the  wool  pulled  over  his 
eyes  at  every  turn,  and,  while  theoretically  en- 
forcing the  law  as  it  is  printed  on  the  statute 
books,  fail  utterly  to  achieve  the  rough-and-ready 
justice  which  the  situation  demands  and  which 
his  less  educated  brethren  can  dispense  by  virtue 
of  instinct  acquired  from  long  experience.  It 
must  be  admitted,  however,  that  the  system  of 
political  appointments  is  just  as  bad,  if  not  worse, 
when  applied  to  police  magistracies  as  when  exer- 
cised in  higher  places.  The  appointees  may  or 
may  not  turn  out  successfully,  and  in  New  York 
we  have  had  some  extraordinary  surprises  in 
both  directions. 

Did  space  permit  a  judicious  selection  of  the 
historic  rulings  of  traditional  magistrates  would 
make  entertaining  reading.  One  of  the  most 
famous  was  that  of  a  certain  learned  member  of 
this  bench  who  is  said  to  have  discharged  a  de- 
fendant accused  of  killing  a  robin  in  Central 
Park  in  the  following  words: 

"You  are  charged  with  breaking  a  park  ordi- 
nance forbidding  the  public  to  kill  the  robins. 
Of  course,  you  ought  not  to  kill  the  robins,  for 
they  are  harmless  birds,  but  I  have  looked  this 

78 


The  Police  Court 

thing  up  a  little,  and  I  find  that  from  time  im- 
memorial it  has  been  held  that  there  can  be  no 
right  of  property  in  wild  beasts.  Now,  a  robin 
is  clearly  ferra  natura — of  a  wild  nature — and 
so  the  city  has  no  property  in  it.  The  ordinance 
is  therefore  unconstitutional,  and  I  am  con- 
strained to  discharge  you.  You  may  go." 

Nowhere  than  on  the  magistrate's  bench  is 
better  illustrated  the  proverb  that  a  little  learn- 
ing is  a  dangerous  thing,  but  only  a  little  learn- 
ing, even  such  as  classifies  an  innocent  park  robin 
as  a  wild  beast,  is  preferable  to  an  openly  ex- 
pressed intention  of  enforcing  only  those  laws 
which  appeal  to  the  judge's  individual  sense  of 
propriety.  The  writer  recalls  endeavoring  some 
six  years  ago  to  induce  a  certain  magistrate  to 
hold  a  defendant  for  the  grand  jury  for  a  certain 
statutory  offence.  The  learned  magistrate  posi- 
tively refused  to  do  so  on  the  ground  that  there 
was  "no  sense  in  the  law." 

"But  it  is  the  law!"  returned  the  writer. 

"Well,  I  don't  care  if  it  is,"  replied  the  judge 
tartly.  "I  didn't  make  it.  It's  no  law  of  mine, 
and  I  don't  propose  to  follow  it.  Go  and  get 
the  grand  jury  to  indict  if  you  can,  but  I  won't 
hold  this  man  for  doing  what  I  might  want  to 
do  myself  some  day."* 

*See    latter   half  of    Subdivision    5,    Section   278,   New   York 
Penal  Code. 

79 


The  Prisoner  at  the  Bar 

Taken  as  a  body  our  magistrates,  with  a  few 
obvious  exceptions,  are  men  of  wide  experience 
and  practical  common  sense,  who  handle  the 
enormous  stream  of  business  which  comes  before 
them  with  efficiency  and  dispatch.  A  forbidding 
exterior  and,  occasionally,  a  diction  which  might 
startle  a  Friday  evening  prayer  meeting  may  co- 
exist with  a  fair  mind,  a  kind  heart,  and  an  honest 
determination  to  see  that  justice  is  done.  While 
the  rights  of  the  defendant  are  fully  protected  it 
is  probable  that  actual  justice  is  more  nearly  ac- 
complished in  these  than  in  higher  courts,  where 
"reasonable  doubt,"  the  presumption  of  inno- 
cence, and  kindred  privileges,  as  interpreted  by 
a  sympathetic  jury,  intervene  between  the  rights 
of  the  community  and  those  of  the  prisoner  at 
the  bar. 


80 


CHAPTER  V 

THE  TRIAL   OF   MISDEMEANORS 

ONE  of  the  most  efficient,  effective,  and  im- 
portant criminal  courts  in  the  civilized 
world  is  that  established  for  the  trial  of  misde- 
meanors in  New  York  County.  Three  judges, 
each  having  an  equal  voice,  act  as  arbiters  of 
both  law  and  fact.  Originally  this  bench  was 
filled  by  three  regular  police  magistrates  sitting 
in  rotation,  and  in  many  cases  the  same  judge 
before  whom  the  prisoner  had  been  arraigned  in 
the  first  instance  assisted  in  determining  the  final 
question  of  his  guilt  or  innocence.  But  the  old 
Court  of  Special  Sessions  acquired  a  very  un- 
savory reputation  for  many  reasons,  the  chief 
among  them  being  its  alleged  susceptibility  to 
political  influence  and  the  looseness  with  which  its 
funds  were  handled,  and  it  was  finally  legislated 
out  of  existence  in  1895.  Then  a  new  court  was 
created  composed  of  three  justices  who,  while 
they  had  the  powers  of  police  magistrates,  did 
not  sit  in  magistrates'  courts,  but  devoted  their 
entire  time  to  the  trial  of  misdemeanors.  In  the 

Si 


The  Prisoner  at  the  Bar 

last  eight  years  this  court  disposed  of  65,579 
cases,  in  which  40,894  persons  were  convicted 
of  crime,  either  by  trial  or  by  plea  of  guilty. 
During  the  year  1907  alone  13,140  cases  were 
disposed  of,  in  which  there  were  7,960  convic- 
tions. The  judges  in  this  huge  mill  of  justice 
rarely  make  mistakes,  and  few  appeals  are  ever 
taken  from  their  decisions.  They  have  become, 
by  virtue  of  long  experience,  experts  in  fact,  and 
the  training  thus  received  has  qualified  several 
of  them  for  higher  office.* 

As  the  reader  is  already  aware,  a  defendant 
charged  in  a  magistrate's  court  with  the  com- 
mission of  a  misdemeanor,  say  that  of  petit  lar- 
ceny, is  given  an  immediate  hearing,  and,  if  there 
be  reasonable  ground  to  believe  him  guilty,  is 
held  for  trial  in  the  Special  Sessions.  The  in- 
formation or  affidavit,  to  which  the  complaining 
witness  has  sworn  and  which  contains  a  more  or 
less  succinct  account  of  the  facts  alleged  against 
the  prisoner,  is  thereupon  forwarded  to  the  clerk 
of  the  court  and  in  due  course  the  defendant  ap- 

*MlSDEMEANORS    DISPOSED    OF    DURING    THE    YEAR    1907. 

Convicted    1,853 

Acquitted    1*045 

Plead  Guilty   6,107 

Discharged   

Demurrers  allowed   

Forfeited 

Actions  Dismissed    ,. . .-.: 

Total    .......(.r... 

82 


The  Trial  of  Misdemeanors 

pears,  if  he  be  on  bail,  or  is  brought  from  prison, 
if  he  be  in  confinement,  to  "plead."  This  infor- 
mation, which  is  the  basis  of  the  proceedings 
against  him  and  which  is  practically  the  only 
record  in  the  case,  is  commonly  called  the  "com- 
plaint" and  corresponds  with  the  indictment 
found  by  the  grand  jury  where  the  defendant  is 
charged  with  the  commission  of  a  felony. 

After  the  prisoner  has  entered  his  plea,  if  he 
be  in  prison,  he  is  given  a  trial  almost  immedi- 
ately; if  not,  his  case  will  probably  come  up  with- 
in a  week  or  two.  The  offences  over  which  these 
three  judges  have  jurisdiction  are  as  many  and 
as  diversified  as  human  ingenuity  and  the  de- 
mands of  modern  civilized  life,  qualified  by  inef- 
fective legislation,  have  combined  to  make  them. 

As  might  be  expected,  petty  larcenies  and  as- 
saults furnish  together  more  than  thirty  per  cent 
of  the  cases  tried.  The  following  table  will  show 
the  more  numerous  and  important  offences  for 
which  defendants  were  held  in  1907  for  the  Spe- 
cial Sessions  and  their  relative  proportions: 

Petit  larceny 2,890 

Assault,  third  degree 2,097 

Maintaining  a  disorderly  house 674 

Carry  concealed  pistol 988 

Cruelty  to  animals 887 

Failure  to  provide  for  minor 235 

Possessing  obscene  prints 124 

83 


The  Prisoner  at  the  Bar 

Indecent  exposure 84 

Malicious  mischief Ill 

Unlawful  entry 93 

Adultery 1 1 

Adultered  milk 252 

Impure  food 80 

Possessing  burglars'  implements 35 

Offence  against  trade-marks  (364  P.  C.) 6 

Violation  Liquor  Tax  Law 2,109 

Violation  Motor  Vehicle  Law 2,709 

Violation  Sanitary  Code 321 

Violation  Labor  Law 1 76 

Violation  Medical  Law 48 

Violation  Dental  Law 16 

Miscellaneous 1,122 

Total 15,068 

A  spectator  may  in  the  course  of  a  morning 
hear  thirty  or  forty  cases  actually  tried  in  which 
the  charges  cover  almost  every  conceivable  kind 
of  sin,  wrong,  or  prohibition.  One  prisoner  is 
being  prosecuted  for  assaulting  a  non-union  work- 
man, another  for  maintaining  a  public  nuisance, 
another  for  a  violation  of  the  Liquor  Tax  Law, 
another  for  practising  medicine  without  a  license ; 
a  dozen  cases  will  be  rapidly  disposed  of  wherein 
the  defendants  are  charged  with  shoplifting  or 
"illegal  entry"  (a  charge  frequently  lodged 
against  a  suspected  burglar  who  has  made  an 
entry  without  a  "break"  and  has  been  caught 
before  he  has  accomplished  his  purpose)  ;  others 
still  will  be  tried  for  carrying  concealed  weapons, 


The  Trial  of  Misdemeanors 

publishing  or  possessing  indecent  literature,  vio- 
lating trade-mark  laws,  breaking  speed  ordi- 
nances, or  ''malicious  mischief";  while,  if  the 
student  of  institutions  be  patient,  he  may  be  re- 
warded by  the  exciting  spectacle  of  one  who  is 
defending  himself  against  the  charge  of  selling 
skimmed  milk,  holding  a  mock  auction,  driving  a 
spavined  horse,  writing  a  threatening  letter,  mak- 
ing a  fraudulent  assignment,  pawning  borrowed 
property,  using  a  false  weight,  opening  another's 
letter,  keeping  a  cow  in  an  unhealthy  place,  run- 
ning a  cock-fight,  misrepresenting  the  circulation 
of  a  newspaper,  divulging  the  contents  of  a  tele- 
gram, impersonating  a  policeman,  adulterating 
food;  or,  provided  he  be  exceptionally  fortunate, 
may  hear  the  trial  of  a  celebrated  actress  for  her 
impersonation  of  "Sappho,"  or  of  a  manager 
for  producing  "Mrs.  Warren's  Profession." 

He  will  see  every  conceivable  type  of  man, 
woman,  nnd  child,  either  as  defendant  or  witness, 
and  he  may  also  study  every  variety  of  human 
failing  or  weakness.  No  mock  defence  or  pre- 
pared lie  can  deceive  these  argus-eyed  judges; 
short  shrift  is  made  of  the  guilty,  while  the  "rea- 
sonable doubt"  is  recognized  the  instant  it  puts 
in  the  most  furtive  appearance.  In  fact  defend- 
ants are  often  found  guilty  or  acquitted  almost 
before  they  are  aware  they  are  on  trial, — and 

8s 


The  Prisoner  at  the  Bar 

this  with  no  detriment  to  them  or  to  their  cause. 

The  advocates  of  the  abandonment  of  the  jury 
system  point  to  this  court  as  their  strongest  argu- 
ment. No  time  is  lost  in  the  selection  of  a  jury, 
— a  matter  often  of  hours  in  the  General  Ses- 
sions in  cases  of  no  greater  importance.  There 
is  no  opening  address  on  the  part  of  the  district 
attorney  or  counsel  for  the  defendant, — the  writ- 
ten statement  or  information  sworn  to  by  the 
complainant  being  entirely  sufficient  for  the  court. 
Cross-examination  is  cut  down  to  its  essentials 
and  tests  of  "credibility"  are  almost  unnecessary. 
At  the  conclusion  of  the  case  there  are  no  har- 
angues from  either  side,  and  the  judges  almost 
immediately  announce  their  decision  and  gener- 
ally impose  sentence  on  the  spot. 

Of  course  in  nine  cases  out  of  ten  the  evidence 
is  conclusive  and  the  merest  glance  at  the  com- 
plainant and  his  or  her  witnesses  is  enough  to 
satisfy  the  onlooker  that  their  claim  is  honest 
and  the  charge  substantial.  In  such  cases  the 
trials  proceed  with  lightning-like  celerity.  The 
owner  of  the  stolen  property  is  sworn  while  the 
defendant  and  his  lawyer  are  pushing  their  way 
through  the  crowd  to  the  bar. 

"Mr.  Blickendecker,  are  you  a  grocer,  fifty- 
five  years  of  age,  residing  at  icoo-A-rear,  First 
Arenuc,  and  having  a  store  at  666^2  Catharine 

86 


The  Trial  of  Misdemeanors 

Street?"  rapidly  articulates  the  deputy  assistant 
district  attorney. 

"Ya;  I  vas,"  answers  Blickendecker  heavily, 
trying  helplessly  to  catch  up. 

"Did  you,  about  4:49  P.M.,  on  Tuesday,  the 
i  yth  of  April,  observe  the  defendant  near  your 
place  of  business?" 

"Ya;  I  vas— I  mean,  ya,  I  did." 

"What  did  you  see  him  do" 

Blickendecker  wipes  his  forehead  and  turns 
towards  the  court: 

"Your  honors,  gentlemens,  I  see  dot  feller 
dere " 

"The  defendant?"  interrupts  the  presiding 
judge,  patiently. 

"Ya — the  defender,  I  see  dot  defender  mit  a 
leetl  vagon  two  wheels,  py  mein  store  mit  anoder 
feller,  unt  dey  catch  up  ein  crate  of  eggs  unt  put 
him  in  de  vagon  unt  skip  mit  him,  unt  I  hollers 
'Tief  P  unt  runs,  unt  de  officer " 

"That's  enough.  Any  cross-examination? 
No?  Call  the  officer." 

The  officer  is  sworn. 

"Are  you  a  member  of  the  Municipal  Police 
force  of  the  city  and  county  of  New  York,  at- 
tached to  the  Precinct,  and  were  you  so 

attached  on  the  I7th  of  April  last,  and  did  you 

8? 


The  Prisoner  at  the  Bar 

see  the  defendant  on  that  day  near  the  premises 
666*/2  Catharine  Street?" 

"Shure  I  seen  him.  Him  and  another  feller. 
They  were  makin'  off  wid  old  "Delicatessen's 
eggs.  I  catched  this  young  feller " 

"That's  enough.  Any  cross-examination? 
No?  Leave  the  stand." 

"The  People  rest,"  announces  the  assistant. 

"Take  the  stand,"  directs  the  lawyer,  and  his 
client  shambles  into  the  chair. 

"Did  you  steal  Mr.  Blickendecker's  eggs?" 

"No,  your  honor;  Cully  Pagan  asked  me  to  go 
round  and  help  him  deliver  some  eggs.  He  said 
he'd  gimme  a  drink.  So  I  went  along  wid  him. 
All  of  a  sudden  out  comes  this  old  guy  and  yells 
'thief.'  I  gets  scared  and  runs.  I  didn't  mean 
no  harm." 

"That  is  our  case,"  says  the  lawyer. 

"No  cross-examination,"  says  the  assistant. 

The  judges  consult  for  a  moment. 

"We  find  the  defendant  guilty,"  announces 
the  presiding  judge,  dipping  his  pen  into  the  ink. 

"Now,  young  man,  have  you  ever  been  con- 
victed?" 

"No,  your  honor." 

"I  advise  you  not  to  steal  any  more  eggs. 
One  month  in  the  penitentiary.  Next  case !" 

Now  here  is  a  defendant  given  a  perfectly  fair, 
88 


The  Trial  of  Misdemeanors 

if  not  a  very  full,  trial  in  less  than  three  min- 
utes. Of  course  it  is  in  such  a  case  practically  a 
mere  formality.  Two  witnesses  who  have  had 
no  previous  acquaintance  with  the  prisoner, 
whose  eyesight  is  perfect,  and  who  have  no  mo- 
tive to  swear  falsely,  identify  him  as  caught  in 
flagrante  delicto.  The  defendant  has  merely  put 
in  his  defence  uon  the  chance."  His  sentence 
would  be  about  the  same  in  either  case.  The 
only  disadvantage  of  so  active  a  court  is  the  fact 
that  the  multitude  of  the  defendants  render  it 
almost  impossible  to  make  any  very  exhaustive 
study  of  the  majority  of  them  before  sentence. 
However,  as  the  sentences  are  all  light,  the  de- 
fendant always  gets  the  benefit  of  the  doubt,  and 
the  court  resolves  all  doubts  in  his  favor. 

Sometimes  in  such  a  case  a  criminal  conspiracy 
between  the  complainant  and  the  officer  is  dis- 
closed to  "do"  a  mischievous,  but  not  criminal, 
youth  who  has  fallen  into  their  disfavor.  Then 
the  witnesses  are  subjected  to  such  a  fire  of  ques- 
tions that  they  wilt  and  wither  in  the  blast,  the 
defendant  is  acquitted  and  the  prosecution's  wit- 
nesses sometimes  held  for  the  action  of  the  grand 
jury  on  a  charge  of  perjury.  Many  a  cause 
celebre  has  originated  in  the  Special  Sessions 
through  the  perspicacity  of  some  member  of  that 
bench  during  a  petty  trial,  and  defendants  there 


The  Prisoner  at  the  Bar 

convicted  often  divulge  in  their  confessions  evi- 
dence which  for  a  time  sets  the  newspaper  world 
by  the  ears.  This  is  especially  true  of  cases 
where  some  civil  officer  is  accused  of  taking  a 
bribe  to  influence  his  action  or  to  make  an  ap- 
pointment. He  may  be  convicted,  confess,  and 
for  a  day  or  two  the  papers  are  full  of  the  un- 
earthing of  a  far-reaching  conspiracy  to  debauch 
the  city  government,  barter  offices  at  wholesale, 
and  deliver  the  city  to  a  coterie  of  criminals. 
The  next  step  in  the  proceeding  is  the  unfortu- 
nate discovery  that  the  defendant's  confession, 
since  it  cannot  be  corroborated,  is  entirely  worth- 
less. Yet,  as  he  has  apparently  done  all  he  could 
to  atone  for  his  offence,  he  receives  a  mitigated 
sentence,  while  the  uproar  occasioned  by  his  sen- 
sational disclosures  subsides  as  suddenly  as  it 
began. 

The  bane  of  the  Court  of  Special  Sessions  in 
New  York  County  and  very  likely  the  bane  of  all 
similar  courts,  are  the  so-called  "Liquor  Tax 
cases."  As  one  of  the  officers  of  this  court  re- 
cently said:  "In  this  class  of  cases  the  court 
knows  that  it  is  being  'flim-flammed/  and,  in  ad- 
dition, that  it  is  helpless.  We  convict  in  about 
sixty  per  cent  of  the  cases,  but  the  judges  know 
perfectly  well  that  a  considerable  number  of 
those  convicted  are  men  who,  while  not  honest 

90 


The  Trial  of  Misdemeanors 

enough  not  to  violate  the  law,  are  too  honest  to 
pay  corruption  money." 

The  possibilities  for  blackmail  and  the  arbi- 
trary and  unequal  ways  in  which  the  law  is  en- 
forced in  different  parts  of  the  city  (one  section 
being  allowed  to  be  "wide  open"  while  an  adja- 
cent district  is  udry")  render  the  judges  loath 
to  convict  even  in  "straight"  cases.  When  Liq- 
uor Tax  cases  are  transferred,  by  order  of  the 
judge  presiding  in  Part  I,  for  trial  in  the  Gen- 
eral Sessions,  the  juries  before  which  they  are 
prosecuted  will  not  convict  at  all.* 

In  the  same  way  the  court  looks  with  grave 
suspicion  on  most  cases  where  a  defendant  is  ar- 
raigned charged  with  "assault"  on  an  officer. 
They  expect  to  see  arraigned  at  the  bar  (and  are 
usually  not  disappointed)  a  small  man  covered 
with  bandages,  while  a  burly  officer  without  a 
scratch  upon  his  rosy  countenance  takes  the  stand 
and  swears  that  the  defendant  assaulted  him. 
The  policeman  always  has  plenty  of  corrobora- 
tion — the  defendant  none  at  all.  The  chances 
are  that  the  relative  sizes  of  the  two  men  are 
such  that  if  the  officer  coughed  the  defendant 
would  drop  dead.  The  proper  charge  in  such  a 
case  would  be,  not  attempted  assault  on  an  offi- 
cer, but  attempted  suicide.  The  truth  of  the 

*See  note,  infra,  p.  270 
91 


The  Prisoner  at  the  Bar 

matter  probably  is  that  the  small  man,  having 
done  or  said  something  to  irritate  the  officer,  has 
been  pounded  to  a  pulp  and  then  ignominiously 
haled  away  to  the  station  house,  while  his  terrified 
companions,  knowing  full  well  that  if  they  inter- 
fered theirs  would  be  a  similar  fate,  have  retired 
to  their  homes  privately  to  execrate  a  state  of 
civilization  where  humble  citizens  can  be  sub- 
jected to  such  persecution. 

Practically  the  Special  Sessions  is  the  final 
court  of  disposition  for  most  misdemeanors.  Ex- 
cept in  automobile,  theatrical,  health,  copyright, 
and  trade-mark  cases  and  a  few  others,  a  ma- 
jority of  the  defendants  do  not  have  enough 
money  even  to  hire  a  lawyer,  to  say  nothing  of 
taking  an  appeal.  They  are  disposed  of  then  and 
there  just  as  in  certain  cases  they  are  disposed  of 
in  the  magistrates'  courts.  For  them  a  sentence 
once  imposed  is  final. 

Occasionally  the  Special  Sessions  is  the  scene 
of  a  great  trial,  as  celebrated  as  those  fought  out 
in  the  "Parts"  upstairs  or  in  the  criminal  trial 
term  of  the  Supreme  Court  across  the  hall.  A 
prominent  druggist  may  have  been  accused  of  re- 
filling bottles  with  spurious  or  diluted  contents. 
He  is  being  prosecuted  by  the  owners  of  the 
trade-mark  or  label.  They  retain  distinguished 
counsel  to  prepare  the  case  for  the  prosecution. 

92 


The  Trial  of  Misdemeanors 

The  accused  engages  equally  able  lawyers  to  de- 
fend him.  The  crime  is  highly  technical  and  the 
evidence  almost  entirely  a  matter  of  chemical 
analysis  and  expert  opinion.  The  battle  goes  on 
for  weeks  or  even  months.  A  jury  would  have 
become  hopelessly  confused  and  the  issue  success- 
fully obscured,  but  the  three  judges  are  expert 
jurymen,  and  in  due  course,  if  he  be  guilty,  the 
defendant  is  inevitably  convicted.  Such  a  trial 
may  cost  the  parties  tens  of  thousands  of  dollars 
for  expert  testimony  alone,  while  the  sentence  of 
the  defendant  will  very  likely  be  not  more  than  a 
two-hundred-and-fifty-dollar  fine.  Even  so,  the 
integrity  of  the  trade-mark  has  been  sustained 
and  the  swindler  stamped  as  a  criminal. 

Fifty  per  cent  or  more  of  the  work  of  the  Spe- 
cial Sessions  is  practically  amplified  police-court 
business,  but  it  is  accomplished  with  an  exactitude 
and  efficiency  that  makes  much  of  that  done  in  the 
magistrates'  courts  appear  crude  indeed.  The 
lesson  of  this  particular  court  is  that  police  busi- 
iess  can  be  done  speedily,  effectively,  and  justly, 
provided  the  right  men  are  selected  to  do  it. 

Fully  seventy-five  per  cent  of  the  criminals  begin 
with  petty  infractions  of  the  law.  A  driver  for 
an  iceman  may  "swipe"  his  comrade's  horse 
blanket.  If  he  be  convicted  and  sent  to  the  peni- 
tentiary he  may  learn  to  commit  crimes  of  which 

93 


The  Prisoner  at  the  Bar 

he  had  never  dreamed  in  his  driver  days,  when 
his  highest  ambition  was  to  get  a  ticket  to  a 
"chowder"  or  to  a  "grand  ball."  His  next  ap- 
pearance may  be  in  the  General  Sessions  charged 
with  burglary,  and  his  last  in  the  Supreme  Court 
under  indictment  for  murder.  If,  on  the  other 
hand,  having  been  found  guilty,  he  be  merely 
reprimanded  and  paroled  under  a  suspended  sen- 
tence, he  will  in  all  likelihood  never  appear  in 
court  as  a  defendant  again.  Hence  an  oppor- 
tunity, greater  even  than  that  of  the  police  justice, 
for  the  exercise  of  a  wise  and  humane  discretion. 
The  multitude  of  prisoners  who  are  unable  to 
employ  counsel  have  created  a  bevy  of  lawyers, 
abundantly  able  to  look  out  for  the  interests  of 
petty  offenders,  who  stand  or  sit  near  the  bar  and 
are  assigned  by  the  court  to  the  various  defend- 
ants. A  whispered  fifteen  seconds'  conversation 
with  their  unfortunate  client  and  they  are  enabled 
to  take  charge  of  the  case.  Long  experience  has 
made  them  almost  as  expert  in  estimating  human 
nature  as  the  judges  themselves,  and  they  are 
familiar  with  every  trick  of  the  trade  which  may 
raise  a  "reasonable  doubt."  The  leaders  among 
them  have  skilful  "runners"  who  haunt  the  police 
courts  and  the  corridors  of  the  building,  heralding 
the  virtues  and  successes  of  their  masters,  hand- 
ing cards  to  prospective  clients,  and  currying  busi- 

94 


The  Trial  of  Misdemeanors 

ness  in  every  conceivable  manner.  Observing  a 
forlorn  person,  who  timidly  responds  when  his 
case  is  called,  the  runner  instantly  offers  him  the 
services  of  the  "biggest"  lawyer  in  the  court  for 
a  five-,  three-,  or  two-dollar  retainer.  If  the 
client  escapes  conviction  he  is  supposed  to  pay 
twenty-five  dollars  more  and  is  dunned  until  he 
does.  This  may  seem  petty  business  and  small 
pickings,  but  when  one  considers  that  thirteen 
thousand  odd  cases  are  disposed  of  each  year,  one 
sees  that  at  even  the  modest  fee  of  ten  dollars  per 
case  there  is  over  a  hundred  thousand  dollars  a 
year  in  the  Special  Sessions  waiting  for  some- 
body. 

The  best  of  these  lawyers  earn  as  much  as  five 
thousand  dollars  per  year,  including  their  out- 
side and  police-court  business.  The  runner  usu- 
ally gets  nearly  as  much.  Sometimes  there  will 
be  a  one-hundred-dollar,  a  two-hundred-and-fifty- 
dollar,  or  even  a  five-hundred-dollar  fee.  In 
reality  there  is  more  money  to  be  made  in  the 
police  court  than  in  the  Special  Sessions,  for  it  is 
when  the  offender  has  just  been  caught  and  is  in 
his  first  spasm  of  terror  that  he  is  most  ready  to 
"give  up."  Police-court  fees  are  sometimes  very 
high. 

The  most  notable  figure  of  this  bar  was  Tom 
Cherry,  otherwise  known  as  "The  Attorney- 

95 


The  Prisoner  at  the  Bar 

General  of  the  Special  Sessions."  When  sober 
he  was  a  most  capable,  rough-and-ready,  catch-as- 
catch-can,  police-court  lawyer.  His  fame  ex- 
tended to  every  magistrate's  court,  and  his  busi- 
ness was  so  constant  that  he  never  sat  down,  but 
stood  at  the  bar  from  the  opening  of  court  to  its 
adjournment,  defending  almost  every  prisoner 
who  had  money  to  pay  a  fee,  and  being  assigned 
to  practically  all  those  who  had  not.  His  suc- 
cess was  his  undoing.  Without  any  knowledge 
of  law,  although  he  presumably  had  passed  the 
Bar  examinations  (Heaven  knows  how!),  his 
judgment  of  character,  his  ready  wit,  and  his 
quick  tongue  made  him  no  unworthy  antagonist 
for  a  well-trained  youngster.  But  Cherry  never 
took  an  unfair  advantage,  and  his  statement  as 
to  his  client's  past,  and  sometimes  as  to  his  inno- 
cence, was  received  without  question  by  the  court. 
It  was  a  boon  to  a  new  assistant  to  gain  Cherry's 
confidence;  and  it  was  a  reproach  to  many  that 
they  did  not  do  so. 

Cherry  finally  succumbed  to  his  closest  friend 
and  worst  enemy — drink.  His  periodic  absences 
became  more  and  more  frequent,  and  finally  the 
word  was  sadly  whispered  through  the  building 
that  Cherry  had  "passed."  His  memory  is  still 
green  and  his  smiling  face  will  never  be  forgot- 
ten by  those  who  knew  him.  A  rival  attorney 


The  Trial  of  Misdemeanors 

almost  immediately  succeeded  to  his  practice  and 
his  particular  place  beside  the  bar,  but  the  Court 
of  Special  Sessions  is  not  the  same. 

The  practices  of  the  shysters  are  the  curse  of 
the  lower  courts,  and  their  enormities  are  such 
that  a  special  cycle  in  Hades  should  be  reserved 
for  their  particular  retribution.  Preying  upon 
ignorance  and  vice,  they  become  hardened  to 
every  appeal  of  human  sympathy  and  often  de- 
serve punishment  a  thousand  times  more  heavy 
than  the  miserable  wretches  whom  they  make  a 
pretence  of  defending.  They  pervert  justice  and 
prostitute  a  sacred  calling,  extorting  from  their 
clients  the  uttermost  farthing  by  fear  and  false 
pretence.  To  show  that  this  charge  is  not  ill- 
founded,  the  reader  may  take  as  an  example  the 
practice  of  the  shyster  in  dealing  with  those  un- 
fortunate women  who  are  the  common  prey  of 
the  corrupt  plain-clothes  man  and  his  conscience- 
less ally — the  police-court  lawyer. 

Let  us  suppose  that  a  certain  section  of  the 
town  is,  as  the  saying  goes,  "wide  open,"  and  the 
police  are  regularly  collecting  protection  money 
according  to  the  approved  method  of  uthe  sys- 
tem." The  houses  which  pay  up  are  left  undis- 
turbed— and  all  do  pay  up.  So  does  the  little 
street  walker  who  plies  her  trade  in  the  open. 
Some  citizen  or  newspaper  makes  a  complaint  that 

97 


The  Prisoner  at  the  Bar 

the  police  are  not  doing  their  duty.  There  is  a 
bare  chance  that  political  capital  will  be  made  of 
it  and  word  is  sent  to  the  captain  of  the  precinct 
to  "get  busy."  He  sends  for  the  plain-clothes 
man,  and  tells  him  "there  are  not  arrests  enough." 
The  officer  answers  that  "everything  is  quiet." 
"Get  busy,"  says  the  captain.  A  srapegoat  is 
necessary  and  so  the  officer  goes  out  and,  leaving 
the  bawdy-houses  untroubled,  tracks  some  miser- 
able creature  to  her  lonely  room  and  there  arrests 
her  under  the  pretence  that  she  is  violating  the 
"Tenement  House  Law."  Now  the  worst  that 
would  happen  to  such  an  unfortunate  would  be, 
having  "waived  examination"  before  the  magis- 
trate, and  pleaded  guilty  in  Special  Sessions,  to 
be  fined  twenty-five  or  fifty  dollars.  The  girl 
usually  does  not  know  this.  When  she  is  brought 
in  under  arrest  the  keeper  "tips  off"  the  runner 
for  some  lawyer,  who  first  frightens  her  into  be- 
lieving that  a  long  term  of  imprisonment  con- 
fronts her,  and  then  introduces  his  master.  The 
latter  in  turn  offers  to  get  her  out  on  bail,  mean- 
time determining  by  an  expert  cross-examination, 
at  which  he  is  a  past  master,  exactly  how  much 
money  she  has  in  the  world.  He  then  proceeds 
to  acquire  this  by  every  means  at  his  command. 
An  actual  case  will  illustrate  what  follows. 

A  young  girl  who  had  fallen  from  virtue,  but 


The  Trial  of  Misdemeanors 

who  had  never  been  arrested  before,  was  brought 
into  the  Jefferson  Market  prison.  She  had  saved 
five  hundred  dollars  with  which  she  intended  the 
following  week  to  return  to  her  native  town  in 
New  Hampshire  and  start  life  anew.  The  keeper 
led  her  to  believe  that  she  would  be  imprisoned  in 
the  penitentiary  for  nearly  a  year  unless  she  could 
"beat  the  case."  One  of  these  buzzards  learned 
of  her  distress  and  offered  to  procure  bail  for  her 
for  the  sum  of  fifty  dollars.  A  straw  bondsman 
was  produced,  and  she  paid  him  the  money  and 
was  liberated.  Meanwhile  the  lawyer  had 
learned  of  the  existence  of  her  five  hundred  dol- 
lars. By  terrifying  her  with  all  sorts  of  stories 
as  to  what  would  possibly  happen  to  her,  he  suc- 
ceeded in  inducing  her  to  pay  him  three  hundred 
as  a  retainer  to  appear  for  her  at  the  hearing  in 
the  magistrate's  court.  He  had  guaranteed  to 
get  her  off  then  and  there,  but  when  her  case  was 
called  he  happened  to  be  engaged  in  reading  a 
newspaper  and,  looking  up  from  where  he  was 
sitting,  merely  remarked,  "Waives  examination, 
your  honor."  The  girl  had  only  one  hundred  and 
fifty  dollars  left,  and  as  yet  had  had  no  defence, 
but  the  shyster  now  demanded  and  received  one 
hundred  dollars  more  for  representing  her  in  the 
Special  Sessions.  She  now  had  but  fifty  dollars. 
Immediately  after  the  hearing  in  the  police  court 

99 


The  Prisoner  at  the  Bar 

the  bondsman  "surrendered"  her  and  she  was 
locked  up  in  the  Tombs  pending  her  trial,  for  she 
had  not  money  enough  to  secure  another '  bail 
bond.  Here  she  languished  three  or  four  days. 
When  at  last  her  case  appeared  upon  the  calendar 
the  shyster  did  not  even  take  the  trouble  to  come 
to  court  himself,  but  telephoned  to  another  buz- 
zard that  she  still  had  fifty  dollars,  telling  him 
to  utake  her  on."  Abandoned  by  her  counsel, 
alone  and  in  prison,  she  gave  up  the  last  cent  she 
had,  hoping  thus  still  to  escape  the  dreadful  fate 
predicted  for  her.  When  she  was  called  to  the 
bar  the  second  lawyer  informed  her  she  had  no 
defence  and  the  best  thing  she  could  do  was  to 
plead  guilty.  This  she  did  and  was  fined  twenty- 
five  dollars,  but,  having  now  no  money,  was  com- 
pelled to  serve  out  her  time,  a  day  for  each  dol- 
lar, in  the  City  Prison,  at  the  end  of  which  time 
she  was  cast  penniless  upon  the  streets. 

Many  an  originally  honest  young  fellow  who, 
in  a  sincere  attempt  to  build  up  a  small  practice, 
has  haunted  the  magistrate's  court  and  secured 
petty  police  business  has  been  gradually  drawn 
into  the  vortex  of  crime  until  he  is  even  more 
tainted  than  those  whom  he  defends.  The  Legal 
Aid  Society,  which,  so  far  as  the  writer  is  aware, 
is  the  only  bona  fide  charitable  organization  exist- 
ing in  New  York  for  the  purpose  of  assisting  im- 

100 


The  Trial  of  Misdemeanors 

poverished  persons  to  secure  legal  counsel,  does 
not  undertake  any  criminal  business.  No  greater 
service  could  be  rendered  to  the  community  than 
by  some  society  organized  to  protect  helpless  de- 
fendants who  have  fallen  victims  to  the  vultures 
who  prey  upon  the  prison  pens.  At  the  pres- 
ent time  the  official  prosecutor  himself  is  the  only 
person  to  whom  one  charged  with  a  criminal 
offence  can  turn  with  any  hope  of  relief  from  his 
own  lawyer,  and  if  the  number  of  cases  were 
known  where  the  prosecutor  has  befriended  the 
prosecuted  the  eyes  of  jurors  and  of  the  public 
would  be  opened  to  the  real  spirit  which  animates 
a  fair-minded  district  attorney. 

A  favorite  trick  of  shysters  if  they  have  an  im- 
prisoned client  who  still  refuses  to  "give  up,"  is 
to  plead  unot  guilty  and  not  ready"  and  thus  have 
the  case  adjourned  until  they  squeeze  their  victim 
dry.  A  defendant  who  has  any  money  is  never 
permitted  to  go  to  trial  or  even  to  plead  guilty 
before  his  money  is  entirely  exhausted. 

This  is  not  romance,  it  is  practice.  The  men 
who  do  these  things  can  be  seen  any  day  in  every 
police  court  in  New  York — heartless,  cynical, 
merciless.  Lying  and  deceit  are  their  stock  in 
trade,  corruption  their  daily  food.  Within  three 
months  one  of  these  gentry  not  only  compelled  an 
eighteen-year-old  girl  to  give  him  a  fine  Etruscan 

101 


The  Prisoner  at  the  Bar 

ring  which  she  had  inherited,  and  which  he 
pawned  for  five  dollars,  but  stripped  her  of  a  new 
silk  petticoat  which  he  carried  away  in  a  news- 
paper as  a  fee.  This  woman  served  ten  days  be- 
cause she  could  not  pay  her  fine.  Another  woman 
who  had  stolen  an  umbrella  gave  a  shyster  her 
watch.  He  pawned  it  and  then  abandoned  her, 
when  she  came  up  for  trial.  Each  of  these  men 
has  a  special  line  of  clients  which  he  serves,  either 
because  he  is  supposed  to  be  particularly  expert 
in  such  cases  or  because  he  is  regularly  retained  by 
the  "trust"  which  they  compose.  Thus  the  East 
Side  pickpockets  have  one  attorney,  the  "green- 
goods'7  men  another,  the  opium  sellers  a  third, 
the  abortionists  a  fourth,  while  every  "short 
changing,11  "thimble  rigging,"  or  "flim-flam11  case 
sees  the  same  lawyer  for  the  defence. 

It  is  a  fact  of  considerable  significance  that 
most  retailers  charged  with  selling  adulterated 
milk  are  defended  by  the  same  lawyers.  The 
large  milk  companies  apparently  invite  the  trade 
of  the  small  dealer  by  offering  him  cheap  milk, 
and  a  guarantee  that  if  he  is  caught  selling  their 
product  they  will  not  only  defend  him  but,  if  he 
be  found  guilty,  will  pay  his  fine.  Who  does  the 
adulterating?  The  company  or  the  retailer?  It 
is  almost  impossible  to  say.  Nevertheless,  if 
lack  of  evidence  prevents  proceedings  against  the 

102 


The  Trial  of  Misdemeanors 

companies  themselves,  the  next  best  thing  is  to 
punish  the  dealers  who  act  as  their  agents,  under 
the  guise  of  doing  an  independent  business.  If 
prison  sentences  were  invariably  inflicted  in  such 
cases  the  dealers  would  soon  find  their  miserable 
business  as  unhealthy  as  do  the  consumers  who 
buy  from  them. 

Some  very  disreputable,  but,  nevertheless, 
highly  amusing  tricks  are  invoked  by  wily  prac- 
titioners in  the  Special  Sessions  to  secure  the  re- 
lease of  their  clients.  One  of  the  most  adroit  is 
to  secure  adjournments  from  day  to  day  on  vari- 
ous pretexts  until  the  patience  of  the  complaining 
witness  is  nearly  exhausted.  When  the  case  is  at 
last  about  to  be  called  for  trial  the  lawyer  tells 
his  runner  to  go  into  the  corridor  outside  the 
court-room  and  send  in  word  that  some  one  de- 
sires to  see  the  complainant.  The  complainant 
goes  out  to  see  what  is  wanted.  In  the  meantime 
the  case  is  moved  for  trial,  and  when  his  name  is 
called  he  naturally  fails  to  respond.  The  shyster, 
in  a  most  aggrieved  tone,  then  informs  the  court 
that  the  defendant  "is  a  hard-working  man  who 
has  already  ben  dragged  down  to  court  four  or 
five  times,"  on  each  occasion  being  compelled  to 
lose  an  entire  day's  pay;  that  he  is  the  only  sup- 
port of  an  invalid  wife,  an  aged  mother,  six  chil- 
dren, and  an  imbecile  brother;  that  the  defence 

107 


The  Prisoner  at  the  Bar 

is  and  always  has  been  ready  to  proceed  with  the 
case ;  that  simply  in  the  interests  of  justice  he  re- 
quests that  the  defendant  be  discharged  on  his 
own  recognizance  or  acquitted.  In  many  cases 
this  motion  is  granted  and  the  complainant  hur- 
ries back  into  the  court-room  just  in  time  to  meet 
the  defendant  making  a  triumphal  exit. 

The  tears  and  laughter  of  the  police  courts  are 
the  tears  and  laughter  of  the  Sessions.  The  Mis- 
erable* of  Hugo  are  the  miserables  of  to-day. 
Jean  Valjean,  Fantine,  and  Cosette  haunt  the  cor- 
ridors of  our  courts.  As  well  try  to  paint  the 
sufferings  and  experiences  of  mankind  in  a  single 
picture  as  the  ten  thousand  yearly  tragedies  of 
the  Special  Sessions  in  a  single  chapter. 


104 


CHAPTER  VI 

THE  GRAND  JURY 

THE  constitutions  and  laws  of  most  of  the 
States  of  the  Union  provide  that  no  person 
shall  be  tried  for  a  felony  unless  he  shall  first  have 
been  indicted  for  his  offence  by  a  grand  jury.  The 
defendant  may  have  been  caught  in  the  very  act, 
have  freely  acknowledged  his  guilt  to  the  officer 
who  arrested  him,  have  admitted  it  before  the 
magistrate,  and  have  signed  a  full  and  complete 
confession  of  his  crime  in  every  detail,  yet  he  can- 
not be  placed  on  trial  or  his  plea  of  guilty  re- 
ceived until  a  body  of  twenty-three  intelligent,  but 
exceedingly  busy,  gentlemen,  sitting  together  in 
a  secluded  chamber,  have  solemnly  deliberated 
upon  the  case.  If  they  agree  with  the  prisoner  in 
his  contention  that  he  is  guilty  they  thereupon  file 
a  diffuse  and  perplexing  document  to  th^t  effect, 
which  they  have  not  read,  and  probably  would 
not  understand  if  they  had.  The  proceeding  has 
cost  the  county  some  additional  expense  and  the 
defendant  a  day  or  two  longer  in  jail,  and  he  has 

•Record  illegible. 
105 


The  Prisoner  at  the  Bar 

still  to  be  tried  before  a  petit  jury,  where  the  evi- 
dence must  be  presented  again  at  the  greatest 
length,  and  where  the  grand  jury's  action  cannot 
be  considered  in  any  way  as  affecting  the  issue. 
If,  on  the  other  hand,  the  prisoner  contends  that 
he  is  innocent,  and  yet  the  magistrate  who  has 
heard  the  case  thinks  otherwise,  the  same  twenty- 
three  gentlemen,  hearing,  as  a  general  rule,  only 
the  evidence  in  his  dis favor,  will  almost  inevitably 
return  a  true  bill  against  him,  and  he  will  be  put 
to  his  trial.  Of  all  the  features  of  modern  crim- 
inal procedure,  bar  only  the  office  of  coroner,  the 
grand  jury,  or  uThe  Grand  Inquest,"  as  it  is 
called,  is  the  most  archaic.  While  without  any 
doubt  in  thinly  populated  districts  it  may  still  be 
of  value,  in  crowded  cities  like  New  York,  where 
the  volume  of  criminal  business  is  overwhelming, 
it  has  in  large  measure  ceased  to  be  either  effec- 
tive or  desirable  so  far  as  the  ordinary  run  of 
criminal  cases  is  concerned. 

Some  States  manage  to  dispense  entirely  with 
the  services  of  the  grand  jury.  The  prosecutor 
receives  the  complaint  against  the  accused  directly 
from  the  committing  magistrate,  files  an  informa- 
tion and  puts  the  prisoner  on  trial.  Truly  this 
would  seem  both  cheap  and  expeditious. 

Among  the  dusty  archives  of  the  Court  of  Gen- 
eral Sessions  lie  a  pile  of  parchment-bound  vol- 

106 


The  Grand  Jury 

nmes  which  contain  the  earliest  minutes  of  crim- 
inal proceedings  in  the  county.  The  first  page  of 
the  most  ancient  of  these  presents  an  account  of 
the  empanelling  of  the  first  grand  jury  of  which 
any  record  now  remains  in  New  York.  It  reads 
as  follows: 

PROVINCE  OF  NEW  YORK.  Att  the  General 
Quarter  Sessions  of  our  Lord  the  King  held  att  the 
Citty  Hall  in  the  Citty  of  New- York  for  Our  Sayd 
Lord  the  King,  and  the  body  of  the  sayd  Citty  and 
County  of  New-York,  that  is  to  say  on  Tuesu^y  the 
8th  day  of  February,  in  the  Six  and  thirtieth  year 
of  the  Reigne  of  our  Sovereigns  Lord  Charles  the 
Second  of  England,  Scottland,  France  and  Ireland, 
King,  Defender  of  the  faith,  &  before  Cornelis 
Steenyck,  Esqr,  Mayr  of  the  sayd  Citty,  and  James 
Graham,  Recorder,  Nicholas  Bayard,  John  Inians, 
Wm  Pinho  .  .  .  Guyl.  Ver  Plank,  Jn°  Robinson 
and  William  Cox,  Esqrs,  Aldermen  and  Justices  of 
the  Peace  of  the  sayd  Citty  and  County,  Com- 
misionated  by  Authority  undr  his  Royal  Highness 
James  Duke  of  York  and  Albany  Lord  Proprietr  of 
the  Province  aforesd. 

The  Grand  Jury  "which  consisted  of  Nineteen  [?],* 
was  Called  and  Sworne  According  to  An  Oath  Agreed 
On  by  the  Court,  and  was  as  followeth,  viz". : 

"You  Shall  diligently  Enquire  and  true  Presentm* 
make  of  all  Such  things  and  mattrs  as  shall  be  giuen 
you  in  Charge  Or  shall  Come  to  your  knowledge  this 
Present  Servise.  The  Kings,  His  Royal  Highness  Lord 
Proprietr  and  this  City  Councell  Yor  fallows  and  your 
owne  you  shall  well  and  Truely  keep  Secreet.  You 
shall  present  nothing  for  Malace  or  Euill  will  that  you 
Bare  to  Any  Person,  Neither  shall  you  Leaue  anything 
uwpresented  for  Loue,  favour,  affecttion  Reward  Or 
107 


The  Prisoner  at  the  Bar 

Any  hopes  thereof,  but  in  .all  things  that  shall  Concerne 
this  Present  Servise  you  Shall  Present  the  truth  the 
whole  truth  and  nothing  but  the  truth,  According  to  yor 
best  skill  and  knowledge — Soe  help  you  God. 
Mr-  Francis  Rumbout  was  apoynted  foreman. 

The  Recorder    .      .      .     read  to  them  ther  Charge 
whch  was  Deliuered  in  Writeing. 

Then  follows  the  quaint  record  of  the  first  pre- 
sentment or  bill  of  indictment: 


John  Robinson,  "1  For  Our  Lord  the  Kings  sworne  to 

Wm.  Cox,  I  declare  to  the  grand  jury  w1  they 

Richard  Elliott,  [know  about  the  Burgulary  Henry 

Darby  Bryan.  J  Thomassen  is  Charged  with. 

The  Bill  Against  him  was  Committed  to  the  Grand 
Jury,  wth  the  Examncon  of  the  witnesses,  and  the  Court 
adjourned  till  four  in  the  afternoone. 

In  the  Afternoone  the  Court  being  opened  the  In- 
dictm*  agst  Henry  Thomassen  was  returned  by  the 
Grand  Jury  Billa  vera. 

Henry  Thomassen  being  Called  for  the  Sherriff  re- 
turns that  he  has  Broak  Prison  and  made  his  Escape, 
and  Desires  tyme  till  the  next  Sessions  to  Persue  him. 

Ordered  That  the  Sherriff  does  make  Persuits  after 
the  prison1"  to  haue  him  att  the  next  session  to  abide  his 
Tryall.  The  Grand  Jury  was  dismissed  from  further 
Attendance  till  ye  next  sessions  and  ye  court  dissolved. 


It  is  interesting  to  observe  that  on  the  I3th  day 
of  the  November  following,  in  the  first  year  of 
"the  Reigne  of  our  Sovereignee  Lord  James  the 
Second  of  England,  Scotland,  France,  and  Ire- 

108 


The  Grand  Jury 

land,"  etc.,  the  "sherriff"  having  apparently  made 
good  upersuits"  of  Thomassen  and  effected  his 
capture,  the  latter  was  brought  to  the  bar  and 
duly  charged: 


"For  that  he  not  haveing  the  feare  of  God  before  his 
eyes,  but  being  Lead  by  the  instigation  of  the  divell 
.  by  force  and  armes  the  Cellar  belonging  to 
and  being  parte  of  the  dwelling  house  of  William  Cox 
of  the  Citty  of  New-Yorke  merchant  in  the  night 
Season,  To  witt,  between  or  about  the  houres  of  tenn 
or  Eleven  of  the  Clock  .  .  .  feloniously  and  burgu- 
larly  did  breake  and  into  the  same  did  Enter  with  an 
intent  to  steale  and  spoile  the  goods  and  Chatties  of  the 
said  William  Cox  contrary  to  the  peace  of  our  said 
sovereigne  Lord  the  King  his  Crowne  and  dignity." 

Having  pleaded  not  guilty   and  put   himself 
upon   the   county   a  jury  was   empanelled  who 

ctxmrp  • 


swore : 


"That  the  said  Henry  Thomassen  is  guilty  of  the 
feleony  and  burgularly  aforesaid  in  the  said  inditement 
above  specifyed  in  manner  and  forme  as  above  against 
him  is  supposed,  Therefore  it  is  considered  by  the  Court, 
that  the  aforesaid  Henry  Thomassen  be  branded  on  the 
forehead  with  the  Letter  B,  and  be  whipped  on  the  bare 
back  eleven  Stripes  on  the  fourteenth  day  of  November 
instant  in  the  morning  by  Eleven  of  the  Clock,  before 
the  City  Hall  and  pay  all  costs  and  charges  of  prosecu- 


The  oath  of  the  grand  jurors,  their  general 
109 


The  Prisoner  at  the  Bar 

procedure,  and  the  form  of  indictment  are  prac- 
tically the  same  up  to  the  present  day. 

To  appreciate  fully  just  what  part  the  grand 
jury  plays  in  the  administration  of  criminal  jus- 
tice the  reader  should  remember  that  almost  all 
defendants  in  criminal  cases  are  brought  imme- 
diately after  their  arrest  before  a  police  magis- 
trate and  given,  if  they  so  desire,  an  exhaustive 
hearing.  If  the  magistrate  thinks  there  is  suffi- 
cient cause  to  believe  the  prisoner  has  committed 
the  crime  charged  against  him  he  is  held  (if  the 
crime  be  a  felony  or  a  libel)  for  the  action  of  the 
grand  jury,  or  if  it  be  a  misdemeanor,  for  what- 
ever court  tries  such  offences, — in  New  York 
County  the  Court  of  Special  Sessions.  Of  course 
it  is  the  privilege  of  the  defendant  to  be  admitted 
to  bail,  save  where  the  charge  is  one  of  murder, 
until  the  proceedings  against  him  result  either  in 
his  final  discharge  or  his  indictment,  and,  as  has 
been  said  before,  once  he  is  held  for  the  grand 
jury  he  cannot,  even  if  he  be  a  self-confessed 
criminal,  be  tried  or  punished  until  that  body  has 
deliberated  upon  his  case. 

The  following  table  shows  the  number  of  ar- 
rests for  felony  in  New  York  County  each  year 
since  1900,  the  number  of  persons  so  arrested 
who  were  "held"  by  magistrates  for  the  action  of 

no 


The  Grand  Jury 

the  grand  jury,  and  the  number  of  indictments 
"found"  by  that  body: 


Year 

Number  of 
Arrests  for 
Felony 

Number  of 
Persons  "Held" 
for  Action  of 
Grand  Jury 

Number  of 
Indictments 
Pound 

Population  of 
New  York 
County 

1900  

I9OI 

8,588 
8  435 

4.473 
4  395 

3.674 
4  210 

2,050,600 
2  095  116 

I9O2     .  . 

9,465 

5,020 

3.890 

,139,632 

I9O3 

9  939 

4  372 

3.898 

,186,017 

1904     ...     . 

9,238 

3,452 

3,950 

,235,060 

I90S  
1906  
IQ07  

11,688 
II.  553 
13.913 

4.751 
4.169 
5.879 

4,199 
4,116 
5.295 

,468.046 
,553.100 
.687,800 

Total        .... 

119,206 

57,341 

52,027 

It  may  be  of  some  interest  to  note  how  this  in- 
quisitorial body  is  brought  into  being.  Every 
year  a  Board  of  Commissioners,  consisting  of  the 
Mayor,  the  Recorder,  the  Presiding  Justice  of 
the  Supreme  Court,  and  others,  meet  and  make 
up  a  list  of  a  thousand  names  from  which  the 
grand  jurors  for  the  year  are  to  be  drawn.  These 
names  are  placed  in  a  wheel  and  each  month  fifty 
of  them  are  drawn  out  at  random  by  the  County 
Clerk  in  the  presence  of  one  of  the  judges  of  the 
General  Sessions.  From  these  fifty  names  the 
grand  jury  of  the  succeeding  month  are  chosen 
by  lot.  Of  course  the  selection  of  jurors  must 
perforce  be  made  with  ostensible  impartiality,  for 
a  grand  jury  which  was  amenable  to  political  in- 
fluence would  render  the  administration  of  jus- 

iii 


The  Prisoner  at  the  Bar 

tice  worse  than  a  farce.  Such  a  condition  has  not 
been  unknown. 

Not  so  very  long  ago  Recorder  Goff  observed 
that  certain  representative  gentlemen  who  had 
served  on  the  grand  jury  for  years  were  no 
longer  drawn.  In  view  of  the  significance  of  the 
political  situation  at  that  time  the  fact  seemed 
peculiar  and  he  determined  to  make  a  personal 
investigation.  Accordingly  at  the  next  monthly 
drawing  the  Recorder  inserted  his  own  hand  in 
the  wheel  and  found  that  some  of  the  slips  were 
heavier  and  of  a  different  texture  from  the  others, 
and  could  easily  be  separated  by  the  sense  of 
touch.  The  inference  was  obvious.  Undoubt- 
edly the  opportunity  thus  to  elect  between  the 
sheep  and  the  goats  had  been  made  good  use  of. 
No  excuse  for  this  astounding  situation  was 
offered,  and  all  the  slips  at  once  were  destroyed 
by  order  of  the  court.  Later  on  it  was  explained 
that  the  manufacturer  "had  not  been  able  to 
furnish  all  the  slips  of  the  same  material" 

As  but  twenty-three  grand  jurymen  are  selected 
each  month,  only  two  hundred  and  seventy-six 
out  of  the  total  number  chosen  ever  actually 
serve.  The  judge  appoints  a  foreman,  usually  a 
man  of  some  previous  experience,  and  the  jury 
are  sworn.  The  court  then  delivers  a  charge  and 
reads  or  calls  to  their  attention  certain  sections 

112 


The  Grand  Jury 

from  the  Code  of  Criminal  Procedure.  If  there 
is  any  matter  of  public  notoriety  which  comes 
within  their  purvue,  such  as  crimes  against  the 
elective  franchise,  or  insurance,  banking,  or  other 
frauds,  he  is  likely  to  dwell  upon  the  necessity  of 
paying  particular  attention;  to  this  variety  of 
offence.  The  jury  then  retire  to  the  rooms  pre- 
pared for  them  and  begin  their  secret  delibera- 
tions. 

They  are  now  prepared  to  hear  the  evidence 
against  all  persons  charged  with  felonies  or  libel, 
who  have  been  held  for  their  action  by  the  police 
magistrates.  The  original  papers  in  all  these 
cases  have  already  been  copied  under  the  direc- 
tion of  the  district  attorney  and  the  witnesses  sub- 
poenaed to  attend  and  give  their  testimony.  These 
subpoenas  are  served  By  attaches  of  the  prose- 
cutors* office,  commonly  known  as  "county  detec- 
tives," or,  more  popularly,  "sleuths."  It  should 
be  observed  that  the  district  attorney  in  fact  de- 
cides what  cases  shall  be  submitted,  and  prepares 
the  daily  calendar  of  the  grand  jury,  which  as  a 
rule  does  not  know  in  advance  what  business  it  is 
to  consider.  In  addition  to  this,  the  district  attor- 
ney draws,  usually  in  advance,  all  the  indict- 
ments. 

The  indictment  may  be  said  to  be  the  most  im- 
portant individual  paper  in  criminal  procedure, 


The  Prisoner  at  the  Bar 

for  upon  its  sufficiency  depends  the  question  of 
whether  or  not  a  defendant  may  be  tried,  or  if 
tried  and  convicted,  sentenced  to  prison.  The 
general  form  of  these  instruments  has  varied  lit- 
tle during  many  centuries.  They  are  as  archaic 
as  the  grand  jury  itself.  Originally  the  draughter 
of  documents  was  paid  by  the  word,  and  the  more 
prolix  he  could  be  the  better  it  was  for  him.  This 
fact  naturally  influenced  the  form  of  all  legal 
papers.  His  sins  are  still  directly  visited  upon 
us.  Moreover,  not  the  best  forms,  but  the  worst 
are  our  inheritance,  for  usually  only  the  sufficiency 
of  the  worst  is  questioned  and  tested  by  appeal. 
If  an  indictment  is  not  absolutely  defective,  it  is 
sustained  by  the  higher  courts,  and  having  been 
passed  upon  and  not  found  wanting,  immediately 
becomes  a  model  for  all  future  draughtsmen.  It 
may  fairly  be  said  that  the  more  faulty  an  indict- 
ment is  (so  long  as  it  be  not  actually  void)  the 
better  its  chance  of  immortality. 

Probably  the  simplest  indictment  which  the 
grand  jury  can  find  is  one  for  larceny.  Let  us 
suppose  that  a  servant,  Maria  Holohan,  has 
stolen  the  teapot  of  her  master,  the  Hon.  Silas 
Appleboy.  The  grand  jury  present  an  indict- 
ment against  her  in  the  following  terms : 

Court  of  General  Sessions  of  the  Peace  in  and  for  the 
County  of  New  York.  The  People  of  the  State  of  New 
York  against  Maria  Holohan. 

114 


The  Grand  Jury 

The  People  of  the  State  of  New  York,  by  this  indict- 
ment, accuse  Maria  Holohan  of  the  crime  of  grand 
larceny  in  the  second  degree  committed  as  follows:  The 
said  Maria  Holohan,  late  of  the  Borough  of  Manhattan 
of  the  City  of  New  York,  in  the  County  of  New  York, 
aforesaid,  on  the  ist  day  of  April,  in  the  year  of  our 
Lord,  One  thousand,  nine  hundred  and  seven,  at  the 
Borough  and  County  aforesaid,  one  teapot  of  the  value  of 
$50,  of  the  goods,  chattels  and  personal  property  of  one 
Silas  Appleboy,  then  and  there  being  found,  then  and  there 
feloniously  did  steal,  take  and  carry  away,  against  the  form 
of  the  statute  in  such  case  made  and  provided  and  against 
the  peace  of  the  People  of  the  State  of  New  York  and 
their  dignity. 

A.  BIRD, 

District  Attorney. 

This  is  merely  saying  that  uthe  grand  jury 
charge  Maria  Holohan  with  stealing  the  silver 
teapot  of  Silas  Appleboy  on  April  i,  1907.*'  It 
is  the  shortest  indictment  possible.  A  compli- 
cated indictment  may  fill  hundreds  of  pages. 

Many  interesting  old  indictments  are  on  file 
among  the  records  of  the  General  Sessions;  and 
if  one  can  judge  by  the  frequency  with  which  the 
names  of  divers  ungodly  and  reckless  Philadel- 
phians  are  inscribed  upon  their  pages,  "the  gen- 
eral reputation"  of  the  City  of  Brotherly  Love 
for  "peace  and  quiet"  must  have  considerably  im- 
proved during  the  past  two  hundred  years. 

As  a  usual  thing  we  find  among  the  papers 
filed  with  the  indictment  the  original  "informa- 


The  Prisoner  at  the  Bar 

tion"  sworn  to  by  the  aggrieved  party.  Give  heed 
to  the  "unmerciful  conduct"  of  Mr.  William 
Miller: 

CITY  OF  NEW  I 
YORK  ss:  I 

Mathew  O'Brien  of  the  City  of  New  York  Mariner 
maketh  Oath  and  Saith  that  on  Sunday  night  the  first 
Day  of  November  instant  he  this  Deponent  being  at  the 
Tavern  kept  by  Francis  King  on  the  Dock  between  the 
Hours  of  Ten  and  Eleven  of  the  Clock  and  having  a  dis- 
pute with  the  Landlord  relative  to  a  French  Crown 
dropped  by  this  Deponent  one  William  Miller  who  this 
Deponent  heard  and  believes  is  Marker  to  a  Billiard  Table 
in  Philadelphia  immediately  challenged  this  Dep*.  to  fight 
him  and  stopped  this  Deponent  from  going  out  either  at 
the  Door  or  window  altho.  he  made  frequent  attempts  for 
that  purpose  and  thereupon  knocked  this  Deponent  down, 
and  beat  kicked  and  wounded  him  in  a  desperate  and  un- 
merciful manner.  This  Dep1.  Saith  he  also  lost  out  of  his 
pocket  the  whole  of  his  Money  then  about  him  consisting 
of  five  Quineas  in  Gold  two  Crown  pieces  and  a  Note  of 
hand  for  ten  guineas.  And  further  saith  not. 

Mathew  O'Brien. 
Sworn  the  i  Day  of 
Novr.  1704  before  me 
Jn°  Broome,  Jus1  Peace. 

The  grand  jury  of  to-day  is  the  same  old  grand 
jury  that  indicted  William  Miller;  and  the  cases 
are  piling  up, — piling  up,  at  the  rate  of  three, 
four,  five,  or  even  six  hundred  a  month. 

What  would  Mr.  Francis  Rumbout,  who  was 
"apoynted"  foreman  of  that  earliest  grand  jury, 
have  said  if  he  had  been  obliged  to  pass  upon 
six  hundred  cases  in  a  month?  The  time  which 

116 


The  Grand  Jury 

could  actually  be  given  to  the  consideration  of 
any  particular  charge  under  such  circumstances 
would  average  about  six  minutes! 

For  example,  Giuseppe  Candido,  having  been 
summoned  to  appear  suddenly,  finds  himself 
standing  in  the  centre  of  a  large  room  around 
which  are  arranged  a  semi-circle  of  inquisitors. 

He  states  where  he  lives,  what  his  business  is, 
that  he  knows  Michael  Angelo  Spaghetti,  and 
that  the  latter  cut  him  in  the  shoulder  in  a  quarrel 
over  a  glass  of  beer.  He  is  then  excused.  The 
grand  jury  take  a  vote  and  Spaghetti  is  indicted 
for  "wilfully  and  feloniously  committing  an  as- 
sault with  intent  to  kill."  Generally  only  one  side 
of  the  case  is  heard.  There  is  very  little  attempt 
made  to  hold  the  witnesses  down  to  the  strict  rules 
of  evidence.  It  is  all  ex  parte.  "L'evidence  at 
jurie  est  que  cunque  chose  qtie  serve  le  par  tie  a 
prover  I'issue  pur  luy"  as  Henry  Finch  put  it  at 
the  beginning  of  the  seventeenth  century. 

Once  in  a  great  while,  if  there  is  something  a 
little  peculiar  in  the  charge  or  in  the  manner  in 
which  the  witnesses  give  their  testimony,  the 
jurors  may  become  suspicious  and  send  out  for 
other  witnesses  or  possibly  for  the  defendant  him- 
self. Of  course  he  cannot  be  compelled  to  testify, 
but  usually  he  is  glad  of  a  chance  to  explain  away 
the  accusation  if  he  can.  Perchance  the  inquisi- 

117 


The  Prisoner  at  the  Bar 

tors  refuse  to  indict.  But  what  a  waste  of  time 
for  twenty-three  busy  men!  And  as  a  rule  what 
trivial  matters  are  brought  to  their  attention! 

Most  of  the  cases  dismissed  are  so  inherently 
weak  that  the  district  attorney  would  himself 
have  discharged  the  defendants  of  his  own  mo- 
tion, but  the  action  of  the  grand  jury  saves  him 
the  trouble  and  the  odium,  if  any,  and  diffuses  it 
among  an  irresponsible  body.  The  same  thing  is 
true  of  indictments  found  against  influential  per- 
sons,— the  responsibility  is  with  twenty-three, 
not  merely  one. 

But  if  the  grand  jury  is  to  exist  at  all,  it  must 
be  constituted,  and  required  to  act,  in  accordance 
with  the  law.  The  indictment  is  invalid  if  there 
be  on  the  grand  jury  one  who  has  not  the  proper 
qualification  to  sit,  or  if  an  unauthorized  person 
be  present,  or  if  the  evidence  is  not  legally  suffi- 
cient. Even  if  the  defendant  be  as  guilty  as  the 
Father  of  Sin,  he  may  make  a  motion  to  dismiss 
the  indictment  on  any  of  these  grounds,  and, 
whether  the  point  be  well  taken  or  no,  the  case 
may  in  consequence  be  delayed  for  weeks.  Where 
the  defendant  has  the  means  to  employ  astute 
and  learned  counsel,  he  may  retard  his  trial  for 
weeks,  or  even  months,  by  questioning  the  pro- 
ceedings of  the  grand  jury  which  found  the  in- 
dictment against  him. 

118 


The  Grand  Jury 

For  example,  when  Fire  Commissioner  John  J. 
Scannel  was  indicted  for  conspiracy  to  defraud 
the  city  of  New  York,  his  lawyers  ferreted  out 
the  fact  that  one  of  the  grand  jurors  who  had 
found  the  indictment  lived  a  large  portion  of  the 
year  in  the  town  of  New  Rochelle.  When  the  de- 
fendant was  called  upon  to  plead  to  his  indict- 
ment the  lawyers  offered  "a  plea  in  abatement'9 
although  the  law  expressly  provides  that  no  pleas 
save  of  "guilty"  or  "not  guilty"  or  of  "autrefois 
acquit"  may  now  be  entered.  They  insisted,  how- 
ever, on  their  right  to  such  a  plea  and  the  matter 
was  delayed  for  a  long  time.  Their  plea  having 
been  refused  they  then  moved  to  dismiss  the  in- 
dictment because  of  the  alleged  irregularity  in 
having  this  juror  present  who  spent  his  summers 
at  the  seashore.  The  determination  of  this  mo- 
tion took  months.  How  like  the  situation  to  that 
which  existed  in  1433,  when  a  statute  was  enacted 
in  order  to  remedy,  if  possible,  somewhat  similar 
abuses. 

" .  .  .  When  the  Grand  Jury  appears  and  is  ready  to 
pass,  a  tenant  or  defendant  or  one  of  the  petit  jury  pleads 
false  pleas  not  tryable  by  the  Grand  Jury,  and  so  delays 
proceedings  until  this  be  tried.  When  this  is  settled  for 
the  plaintiff,  another  pleads  a  like  false  plea  since  the  last 
continuance;  and  so  each  of  the  defendants,  tenants,  or 
jurors,  one  after  another,  may  plead  and  delay  the  Grand 
Jury ;  and  although  all  be  false  and  feigned,  the  Common 
Law  has  no  penalty.  This  has  caused  great  vexation  and 

119 


The  Prisoner  at  the  Bar 

travail  to  the  grand  juries,  and  plaintiffs  have  been  so  im- 
poverished that  they  could  not  pursue  their  cases,  and 
jurors  are  more  emboldened  to  swear  falsely."* 

A  substantial  proportion  of  the  delays  in  crim- 
inal procedure  are  due  to  the  interminable  mo- 
tions based  upon  alleged  irregularities  in  the  con- 
stitution and  action  of  the  grand  jury,  and  the  in- 
sufficiency of  indictments.  Such  delays  would 
vanish  with  the  abolition  of  that  body. 

But  beyond  its  general  power  to  investigate 
specific  charges  of  crime  laid  before  it,  the  grand 
jury  constitutes  the  only  general  inquisitorial 
body  that  we  have,  and  its  value  and  services  in 
this  respect  must  not  be  overlooked.  It  is  highly 
important  that  the  power  should  reside  in  some 
responsible  body  to  summon  witnesses  and 

*The  historical  development  of  the  grand  jury  is  highly  in- 
teresting. Originally  the  assize  at  which  the  knights  assembled 
was  not  unlike  a  sort  of  county  parliament  and  all  manner  of 
matters  were  submitted  to  them.  Gradually  as  the  jury  de- 
veloped out  of  this  unorderly  gathering  together,  the  sheriffs 
got  into  the  habit  of  summoning  only  enough  men  to  form  the 
grand  jury  and  as  many  petty  juries  (when  those  came  into 
existence)  as  might  be  needed. 

In  the  beginning  private  vengeance  was  the  moving  cause  of 
all  criminal  procedure.  The  aggrieved  party  made  a  direct 
appeal  to  the  county  and  the  issue  was  fought  out,  the  com- 
plainant and  defendant  appearing  in  person  or  by  champions. 
This  was  exceedingly  unsatisfactory  for  many  reasons,  among 
others  that  not  seldom  a  rich  man  would  hire  all  the  champions 
within  reaching  distance  and  the  poor  man  be  left 
without  any,  which  suggests  the  somewhat  similar  practice  of 
many  wealthy  litigants  at  the  present  day.  But  this  mode  of  in- 
dividual redress  colored  all  English  procedure  and  is  the 
direct  cause  which  makes  English  criminal  trials  in  so  many 
ways  resemble  private  litigation.  Private  vengeance  was  at  the 
bottom  of  it. 

120 


The  Grand  Jury 

compel  testimony  anent  suspect  offences,  con- 
spiracies, and  official  misconduct.  This  is  pre- 
cisely what  the  grand  jury  did  as  far  back  as 
1300,  when  it  acted  as  a  "suspecting"  jury.  Only 
through  some  such  power  can  a  rumor  of  crime, 
unsubstantial  and  intangible  in  itself,  be  traced 
to  its  source  and  the  knowledge  of  those  who  can 
testify  as  to  the  perpetration  of  it  secured  at  first 
hand. 

Acting  within  its  legal  powers  as  an  investigat- 
ing body,  the  grand  jury  has  a  vast  power  and  can 
be  immensely  useful  to  the  community,  but  when 
it  attempts  to  do  more,  its  action  has  no  more 
validity  and  is  entitled  to  no  more  respect  than 

When  the  "county"  or  the  public  were  the  accusers,  a  mere 
accusation  was  practically  equivalent  to  a  conviction  subject 
to  the  chance  of  the  defendant's  escaping  by  a  favorable  ter- 
mination of  "the  ordeal  of  water."  But  "the  ordeal"  in  time 
died  out,  just  as  did  wager  of  battle,  and  something  had  to 
take  its  place.  This  was  the  jury. 

From  very  early  times  we  find  "grand"  or  "accusing"  juries 
presenting  charges  for  the  trial  jury  to  dispose  of,  although 
the  accusing  jury  frequently  acted  as  trial  jury  as  well.  By  1212 
it  had  become  customary  to  submit  a  charge  found  by  a  pre- 
senting jury  to  a  larger  combination  jury  which  included  the 
original  body  which  had  presented  the  charge.  The  enlarged 
jury,  usually  composed  of  a  jury  from  another  "hundred"  and 
"the  four  vills,"  delivered  a  unanimous  verdict.  By  1300  it 
had  begun  to  be  the  privilege  of  an  accused  to  "challenge" 
those  who  had  presented  the  charge  against  him,  but  it  was 
the  approved  practice  to  try  an  accused  by  some  at  least  of 
those  who  had  presented  him. 

"The  four  knights  were  called,  who  came  to  the  bar  girt  with 
swords  (above  their  garments)  and  were  charged — to  choose 
twelve  knights  girt  with  swords  for  themselves  and  the  others — 
and  the  justices  ordered  the  parties  to  go  with  the  knights  into 
a  chamber  to  choose  or  to  declare  their  challenges  of  the 

121 


The  Prisoner  at  the  Bar 

that  of  any  other  self-constituted  inquisitorial 
body  of  intelligent  citizens. 

A  belief  is  quite  prevalent,  however,  among 
grand  jurymen  that  it  is  their  duty  not  only  to 
ascertain  what  crimes  have  been  committed  and 
to  find  indictments  for  them,  but  to  act  as  the 
censors  of  the  public  morals,  as  watchdogs  of  the 
public  treasury,  as  the  promoters  of  legislation, 
and  generally  as  the  conservators  of  the  public 
interests.  This  impression  is  entirely  erroneous, 

others  chosen  by  the  four,  for  after  the  return  of  the  panel  so 
made  by  the  four  knights  the  parties  shall  have  no  challenge 
to  panel  or  polls  before  the  justices."  (1406)  Y.  B.  7  H.  IV, 
20,  28. 

The  idea  seemed  to  be  that  unless  there  were  a  few  on  the 
jury  who  had  already  formed  a  provisional  opinion  as  to  his 
guilt  the  prosecution  would  not  have  a  fair  chance.  In  Wil- 
loughby's  case  in  1340,  Earning,  J.  naively  remarked,  "In  such 
case  the  inquest  should  be  taken  by  the  indictors  (the  accusors) 
and  others.  Certainly  if  the  indicators  be  not  there  it  is  not 
well  for  the  King."  In  1351  by  St.  25  Edw.  Ill,  c.  3,  it  was 
enacted  that  "no  indictor  be  put  on  an  inquest  upon  the 
deliverance  of  one  indicted  for  trespass  or  felony,  if  he  be 
challenged  for  this  cause  by  the  party  indicted."  Persons 
"presented"  or  accused  could  "put  themselves"  upon  different 
counties,  that  is  to  say,  could  submit  their  case  to  juries  drawn 
from  such  counties,  with  certain  limitations,  as  they  may  elect. 
Thus  we  find  a  case  where  one  having  been  "presented"  by 
an  accusing  jury  "puts  himself  on  the  County  of  Surrey  and 
on  all  men  in  England  who  know  him."  At  Easter  came  riding 
twenty-four  knights  from  Surrey  at  the  king's  summons  who 
promptly  found  him  to  be  a  robber,  and,  says  the  record, 
"Since  he  put  himself  upon  these,  let  him  be  hanged." 

There  is  a  criminal  case  in  Y.  B.  30  &  31  Edw.  I,  528,  which 
throws  a  good  light  on  the  procedure  of  the  time.  W.  was 
the  stabler  of  J.'s  horse  and  had  been  kicked,  while  trying  to 
mount,  so  that  he  died.  The  horse  thereupon  became  forfeit 
to  the  king  as  a  deodand.  The  jury  accused  J.  of  keeping  the 
horse  in  spite  of  this  and  also  charged  him  with  having  buried 
W.  without  calling  in  the  coroner.  This  he  denied  and  "put 

122 


The  Grand  Jury 

and  yet  it  is  surprising  to  what  an  extent  grand 
jurors  imagine  that  because  of  their  office  some 
particular  sanctity  attaches  to  their  enunciation 
of  opinions  in  matters  that  do  not  concern  them. 
A  grand  juror  walking  in  the  morning  from 
his  house  to  the  corner  to  take  a  street-car,  acci- 
dentally stumbles  over  a  coal-hole  cover;  he  re- 
ports it  to  his  associates;  many  of  them  know  per- 
sons who  have  stumbled  over  coal-hole  covers; 
they  talk  the  matter  over  and  decide  that  there 
should  be  no  coal-holes,  since  with  the  abolition 
of  the  coal-hole  the  coal-hole  cover  also  would 
disappear.  They  call  upon  the  commissioner  of 
public  works  to  appear  before  them  and  testify; 
upon  the  street-cleaning  commissioner;  upon  the 

himself  on  the  county."  The  judge,  addressing  the  jury,  which 
was  probably  the  same  that  had  made  the  accusation,  charged 
as  follows: 

"If  W.  died  from  the  kick  of  the  horse,  the  horse  would 
be  deodand.  If  not  it  would  be  John's.  If  the  king 
should  lose  through  you  what  rightly  belongs  to  him, 
you  would  be  perjured.  If  you  should  take  away  from 
John  what  is  his,  you  would  commit  a  mortal  sin.  There- 
fore, by  the  oath  you  have  made,  disclose  and  tell  us  the 
truth,  whether  the  said  W.  died  of  the  horse's  kick  or 
not.  If  you  find  that  he  did,  tell  us  in  whose  hands  is  the 
deodand  horse  and  what  he  is  worth;  and  whether  the 
said  W.  was  buried  without  a  view  of  the  coroner." 
All  things  considered — a  pretty  good  charge. 

Gradually,  and  in  large  measure  because  the  "ordeal"  had 
disappeared  and  the  grand  jury  as  a  distinct  body  had  been 
fully  established,  no  method  of  ascertaining  the  truth  of  an 
accusation  was  left,  and  a  mere  presentment  in  fact  amounted 
to  a  conviction,  so  that  the  need  of  some  other  jury  to  pass 
upon  the  issue  was  apparent  Out  of  this  need  the  modern 
petty  jury  developed. 

123 


The  Prisoner  at  the  Bar 

commissioner  of  buildings;  they  learn  how  many 
coal-holes  there  are  in  the  city;  what  their  covers 
are  made  of;  how  they  are  fastened  or  are  not 
fastened  in  place ;  and  some  day  when  the  grand 
jury  comes  down  into  court,  the  foreman  arises 
and  states  that  heihas  a  presentment.  The  judge 
on  the  bench  requests  him  to  hand  it  up;  he  de- 
livers it  to  the  clerk,  who  passes  it  to  the  judge, 
who  returns  it  to  the  clerk  and  directs  him  to  read 
it.  The  clerk  stands;  the  grand  jurors  stand; 
the  clerk  reads: 

uTo  the  Honorable  John  Smith,  Presiding  Jus- 
tice of  the  Court  of  General  Sessions :  The  Grand 
Jury  of  the  County  of  New  York  respectfully 
present:  Our  attention  has  been  called  to  the 
large  number  of  unprotected  and  unguarded  coal- 
In  course  of  time  the  accusing  jury  became  as  it  is  now,  a 
distinct  and  separate  body,  deliberating  secretly,  its  members 
being  no  longer  permitted  to  sit  as  trial  jurors.  They  acted  on 
common  report,  their  own  personal  information,  and  upon  the 
application  of  injured  parties,  and  initiated  most  criminal  pro- 
ceedings. It  was  necessary  for  some  one  to  ferret  out  crime 
and  hold  the  perpetrators  for  trial,  and  the  jury  did  practically 
the  whole  business.  As  the  years  went  on  the  jury  became 
more  and  more  a  purely  ex  parte  accusing  body  with  practically 
no  judicial  supervision  and  receiving  about  what  it  saw  fit  as 
evidence.  From  time  to  time  the  powers  and  the  character  of 
the  grand  jury  has  been  fiercely  assailed.  Two  centuries  ago 
it  came  near  receiving  a  knock-out  blow,  but  it  had  become  too 
firmly  established.  In  Shaftsbury's  case,  8  How.  St.  Tr.  759 
(1681),  they  were  in  fact  compelled  to  receive  their  evidence 
publicly  in  court,  but  their  vigorous  protests  and  the  failure 
of  the  attempt  left  the  body  all  the  more  securely  entrenched  in 
English  procedure. — Condensation  from  Prof.  J.  B.  Thayer's 
masterly  chaper  on  "Trial  by  Jury  and  Its  Development"  in  m; 
"Preliminary  Treatise  on  the  Law  of  Evidence" 

124 


The  Grand  Jury 

holes  existing  in  the  County  of  New  York;  we 
have  called  before  us  a  large  number  of  witnesses 
and  given  much  time  to  the  taking  of  testimony 
relative  thereto;  we  find  that  in  the  past  year  ten 
thousand  persons  have  lost  their  lives  through 
falling  into  improperly  guarded  coal-holes,  and 
that  the  records  of  the  hospitals  show  lists  of 
over  one  hundred  thousand  others  who  have 
been  severely  injured  by  similar  catastrophies ; 
while  it  is  beyond  the  capacity  of  the  mind  of  man 
to  comprehend  the  infinite  number  of  those  who 
have  been  wounded,  bruised,  lacerated  and  con- 
tused by  similar  accidents,  to  an  extent  not  suffi- 
cient to  render  hospital  aid  necessary,  etc."  And 
such  a  presentment  goes  on  with  its  statistics  and 
figures  and  ends  with  the  recommendation  that 
the  legislature  pass  a  certain  law,  that  the  alder- 
men pass  a  certain  ordinance,  that  certain  laws  or 
certain  ordinances  be  repealed,  or  that  other  leg- 
islative interference  be  had,  or  legislative  action 
should  be  taken,  or  that  some  city  official  or  city 
officials  do  this  or  do  that,  or  that  some  depart- 
ment make  such  and  such  an  investigation  and  act 
thereon  in  such  and  such  a  way,  and  concludes 
with  the  signature  of  the  foreman  and  secretary 
of  the  grand  jury.  The  court  then  arises,  bows 
to  the  grand  jurors,  says:  "Gentlemen,  we  have 
heard  your  presentment;  I  now  direct  that  it  be 

125 


The  Prisoner  at  the  Bar 

placed  on  file  in  this  court  and  that  copies  thereof 
be  forwarded  forthwith  by  the  clerks  to  the  heads 
of  the  appropriate  departments."  And  the  grand 
jurors  retire,  imagining  that  in  some  way  they 
have  contributed  directly  to  the  public  weal. 

An  examination  of  the  long  list  of  presentments 
on  file  in  the  office  of  the  clerk  of  the  Court  of 
General  Sessions  will  show  the  diversified  inter- 
ests to  which  the  grand  jury,  acting  as  we  have 
shown  as  a  merely  self-constituted  censor  morum, 
has  devoted  its  attention  and  in  which  it  has  con- 
sumed many  of  its  working  hours  in  the  past.  So 
far  as  we  know,  no  action  whatever  has  ever  been 
taken  upon  any  of  these  presentments.  That  at 
times  they  may  have  done  some  good  through 
calling  to  the  attention  of  the  public  press  mat- 
ters which  otherwise  would  not  be  under  scrutiny, 
may  be  admitted;  but  the  discussion  of  them  in 
the  press  has  usually  been  as  ephemeral  as  the 
existence  of  the  grand  jury  by  which  they  were 
filed;  and  in  general  it  may  be  said  that  the  only 
effect  of  a  grand  jury's  meddling  with  these  things 
is  to  detract  from  the  dignity  of  its  office  and  the 
importance  of  the  work  which  it  and  it  alone  can. 
lawfully  do. 

The  lay  reader  will  naturally  be  led  to  inquire 
why  this  archaic  institution  which  it  costs  so  much 
time  and  money  to  perpetuate,  which  causes  so 

126 


The  Grand  Jury 

much  unnecessary  inconvenience  to  witnesses  and 
offers  so  many  technical  opportunities  for  delay, 
which  frequently  is  ineffective  and  officious,  and 
for  the  most  part  concerns  itself  with  the  most 
trivial  matters  only,  should  not  be  abolished,  and 
why  prisoners  charged  with  crime  whose  cases 
have  been  properly  examined  by  committing  mag- 
istrates should  not  be  immediately  placed  upon 
their  trial. 

It  is  doubtful  if  any  very  convincing  arguments 
in  favor  of  retaining  the  grand  jury  for  the  pur- 
pose of  indicting  ordinary  offenders  can  be  ad- 
vanced. That  it  should  be  continued  for  the  pur- 
poses of  investigation,  with  power  of  indictment, 
to  be  summoned  when  the  need  thereof  arises,  is 
indisputable.  But  the  original  necessity  for  the 
grand  jury  has  disappeared  with  the  onward 
march  of  the  centuries.*  In  early  days,  when  the 
influence  of  the  crown  threatened  the  liberties  of 
the  English  freeman,  and  when  judges  and  mag- 
istrates owed  their  positions  to  royal  favor,  it 
was  often  difficult  if  not  impossible  to  secure  the 
punishment  of  a  criminal  if  he  happened  to  be  a 
retainer  or  under  the  protection  of  those  in 
power.  So,  too,  the  defenceless  subject  might  be 
accused  of  crime  by  an  influential  person  and 

*Cf.    "Reform    in    Criminal    Procedure,"    H.    W.    Chapin,    7 
Harvard  Law  Review  189. 

I27 


The  Prisoner  at  the  Bar 

haled  to  the  bar  upon  a  baseless  and  malicious 
charge.  Some  barrier  was  needed  between  the 
powerful  and  the  weak,  and  some  tribunal  before 
which  the  weak  could  accuse  the  powerful  of  their 
wrongs.  This  was  supplied  by  the  grand  jury, 
which,  ever  changing  its  members  and  deliberat- 
ing in  secret,  seemed  well  calculated  to  safeguard 
the  people's  liberties.  But  at  present  we  need  no 
such  protection  against  a  government  of  and  by 
the  people,  and  indeed  such  a  body,  deliberating 
secretly  and  hearing  the  evidence  against  an  ac- 
cused person  without  giving  him  the  opportunity 
to  be  heard,  seems  strangely  out  of  harmony  with 
the  spirit  of  our  institutions. 

To-day,  the  grand  jury,  initiating  a  proceeding 
against  a  citizen  who  may  be  ignorant  that  he  is 
even  under  suspicion,  may  be  led  to  accuse  him  of 
some  foul  crime  upon  the  mere  ex  parte  statement 
of  malicious  witnesses,  without  giving  him  an 
opportunity  to  explain  or  contradict  the  evidence. 
The  mere  charge  of  crime  is  often  enough  to 
ruin  a  man  forever.  The  argument  that  a  sus- 
pected person  may  escape  before  arrest  unless  the 
charge  is  considered  secretly,  has  in  these  days  of 
telegraphs,  railroads  and  extradition  treaties  lit- 
tle of  the  force  which  it  may  have  carried  with  it 
in  cruder  times.  Moreover,  the  possibility  of  in- 
dicting public  officials  or  others  upon  insufficient 

128 


The  Grand  Jury 

evidence  for  political  purposes,  or  for  "moral 
effect,"  would  be  done  away  with,  and  only  those 
against  whom  legal  testimony  made  the  charge 
reasonably  clear  would  be  threatened  with  prose- 
cution, and  then  only  when  their  defence  had 
been  heard  by  a  magistrate  and  held  insufficient. 

Prosecutors  now  prefer  to  take  as  few  cases  be- 
fore their  grand  juries  in  the  first  instance  as 
possible,  and  to  send  the  man  with  a  grievance, 
who  thinks  he  has  some  political  pull  and  "wants 
to  get  the  fellow  indicted  anyway,"  into  the  mag- 
istrate's court  to  make  good  his  charge. 

Almost  twenty-five  per  cent  of  the  States  in 
the  Union  have  modified  their  procedure  in  this 
regard  so  as  to  conform  to  modern  requirements. 
The  State  constitutions  of  Indiana,  Illinois,  Iowa, 
Nebraska,  Oregon  and  Colorado  give  the  legis- 
latures the  power  to  make  laws  dispensing  with 
grand  juries  in  any  case,  and  in  California,  Con- 
necticut, Kansas,  Louisiana,  Montana,  South  Da- 
kota, Utah,  Vermont,  Wisconsin  and  Wyoming 
constitutional  provisions  exist  permitting  all  crim- 
inal proceedings  to  be  made  by  information,  or 
dispensing  with  grand  juries  in  certain  cases.  This 
is  also  true  of  the  Federal  Government.  Experi- 
ence has  demonstrated  that  ample  protection  is 
afforded  the  accused  where  the  State  is  permitted 
to  prosecute  those  held  to  bail  by  an  examining 

129 


The  Prisoner  at  the  Bar 

magistrate  upon  proof  of  probable  cause.  He  is 
better  protected  than  by  a  grand  jury  which  hears 
in  secret  only  the  evidence  against  him  and  gives 
him  no  opportunity  of  explanation. 

A  system  which  would  allow  of  the  prosecution 
of  all  felonies  by  information  would  do  away 
with  the  great  and  practically  useless  labor  of 
our  grand  jurors  in  the  ordinary  run  of  cases, 
would  save  endless  time  and  money  to  all  con- 
cerned, and  might  still  retain  the  grand  jury  for 
such  purposes  as  necessity  requires.  Justice  would 
be  more  speedy  and  just  as  effective  if  the  prose- 
cution of  all  crimes  were  instituted  before  an  ex- 
amining magistrate,  and  the  grand  jury  would 
then,  at  the  summons  of  the  court,  meet  to  per- 
form only  those  important  and  peculiar  func- 
tions of  investigation  that  are  consonant  with  its 
dignity  and  necessary  to  the  public  weal. 


130 


CHAPTER  VII 


THE  LAW'S  DELAYS 


"IF  THE  COOK  SHOULD  STEAL  THE  TEAPOT*' 


"  WOULD  have  her  locked  up  and  pun- 
A  ished!"  the  reader  undoubtedly  exclaims  as 
he  notes  our  title.  It  is  hardly  likely,  however, 
that  he  realizes  the  possible  significance  of  such  an 
undertaking.  For  the  edification,  therefore,  of 
those  who  have  cooks  and  teapots,  and  in  order 
to  be  forewarned,  if  not  forearmed,  let  us  suppose 
that  the  worthy  Mr.  Appleboy  has  not  only  the 
domestic  necessary  for  our  case,  but  also  a  family 
heirloom  which  is  worth  more  than  twenty-five 
dollars,  the  requisite  value  to  make  its  abstrac- 
tion, with  felonious  intent,  grand  larceny  in  the 
second  degree. 

Mr.  Appleboy,  after  a  moderately  hard  day's 
work,  has  been  for  an  hour  at  the  club,  and  is 
now  ascending  his  front  steps.  As  he  is  about 
to  place  the  key  in  the  door,  he  observes  his  cook, 
Maria,  making  her  exit  from  the  area  with  some 
large  object  concealed  beneath  her  shawl.  A 


The  Prisoner  at  the  Bar 

flash  from  the  dying  sun,  setting  over  the  elevated 
railroad  tracks  of  Sixth  Avenue,  betrays  a  tell- 
tale protruding  spout.  Maria  does  not  perceive 
her  master,  but  the  latter,  being  of  an  inquiring 
disposition,  descends  the  steps  and  follows  her 
down  the  street.  She  hurries  along  upon  her 
journey  until,  reaching  Eighth  Avenue,  she  turns 
the  corner  and  enters  a  pawnshop.  Mr.  Apple- 
boy,  puffing,  follows  hard,  and  opens  the  door 
just  as  Maria  is  in  the  act  of  receiving  from  the 
pawnbroker  the  sum  of  ten  dollars.  She  has  the 
money  in  one  hand,  the  teapot  in  the  other;  she  is 
caught  in  flagrante  delicto,  or,  in  the  modern 
equivalent,  "with  the  goods  on." 

Maria  shrieks  and  calls  upon  the  Saints.  Ap- 
pleboy,  purple  from  his  exertions,  pounds  the 
floor  with  his  gold-headed  cane  and  fiercely  in- 
quires what  she  means  by  going  off  with  his  silver 
teapot.  In  reply  Maria  falls  on  her  knees,  breaks 
into  tears,  and  confesses  her  crime,  offering  no 
excuse,  and  suggesting  no  palliating  circumstance. 
She  implores  his  forgiveness,  but  Appleboy, 
righteously  indignant,  is  obdurate.  She  could 
have  stolen  anything  but  his  grandmother's  tea- 
pot, and  he  would  have  overlooked  it.  The 
pawnbroker,  who  takes  but  a  mild  interest  in  the 
proceedings,  merely  seizes  the  opportunity  to  re- 

132 


The  Law's  Delays 

move  from  the  cook's  unresisting  fingers  the  roll 
of  bills. 

Appleboy  resolves  to  do  his  duty.  He  will  set 
an  example  of  good  citizenship — he  will  have 
her  arrested,  locked  up,  and  sent  to  prison. 

"Summon  a  policeman!"  he  cries  to  the  indif- 
ferent pawnbroker. 

"Get  one  yourself!"  replies  the  other. 

Appleboy  starts  for  the  door,  keeping  one  eye 
on  the  prostrate  Maria.  Two  blocks  distant  he 
sees  a  stalwart  officer  in  the  act  of  conversing 
affably  with  a  street  cleaner.  At  this  moment  an 
urchin  notices  Maria  couchant  upon  the  floor. 
An  expansive  grin  takes  possession  of  his  fea- 
tures, and,  placing  his  fingers  to  his  mouth,  he 
emits  a  shrill  phistle.  Instantly,  like  a  flight  of 
vultures,  a  small  army  of  boys  descend  upon  Ap- 
pleboy, who  now  decides  that  the  only  way  to 
procure  the  policeman  is  to  shout  for  him.  In 
his  embarrassment  he  yells:  "Stop  thief!  Stop 
thief!  Police!"  but  the  officer  pays  no  attention. 
He  is  discussing  Tommy  Sullivan's  chowder  party 
of  the  night  before. 

"Say,  mister,  I'll  get  the  copper  for  ye,"  shouts 
some  little  fellow,  and  starts  on  a  run  up  the 
avenue.  A  few  follow  him  and  quickly  corral  the 
officer,  who,  protesting,  dawdles  slowly  in  the 
direction  of  Mr.  Appleboy,  swinging  his  club,  and 

133 


The  Prisoner  at  the  Bar 

apparently  taking  little  interest  in  their  remarks. 
Meantime,  the  pawnbroker  has  shut  and  locked 
the  door.  Maria,  within,  is  still  in  a  state  of 
coma.  The  much-annoyed  old  gentleman  is  fast 
being  surrounded  by  a  dense  throng  of  loafers, 
tradesmen,  ladies  of  the  neighborhood  and  pe- 
destrians, while  the  street  is  blocked  with  vagrant 
cabs  and  grocery  carts.  He  wishes  he  were  at 
home  in  his  comfortable  library,  but  realizes  that 
he  is  in  for  it  now,  and  must  stick  it  out. 

"Well,  what  do  you  want?'1  demands  the  offi- 
cer, pushing  his  way  through  the  crowd  until  he 
confronts  the  innocent  cause  of  the  disturbance. 
"What  are  yer  makin'  all  this  row  about,  and 
blockin'  up  the  street  fer?" 

"Maria,  my  cook,  stole  my  silver  teapot,"  an- 
swers Mr.  Appleboy.  "I  caught  her  trying  to 
sell  it  in  there.  I  ask  that  you  place  her  under 
arrest." 

"What's  yer  name?"  asks  the  policeman. 
"Who  are  yer,  anyway?"  The  crowd  cheers  de- 
lightedly, for  while  the  copper  is  not  popular  in 
the  neighborhood,  an  old  swell  like  this  is  "nuts" 
for  everybody. 

"I  am  a  citizen  and  a  taxpayer,"  replies  Mr. 
Appleboy  stiffly,  "and  I  insist  upon  your  doing 
your  duty  and  arresting  this  woman." 

"Aw,  come  on  now  and  give  us  yer  name,"  con- 
134 


The  Law's  Delays 

tinues  the  officer.  uYou  can't  expec'  me  t'arrest 
a  person  unless  I  know  who  I'm  doin'  it  fer.  How 
do  7  know  yer  ain't  throwin'  some  game  into 
me?" 

At  this  moment  one  of  the  boys  shies  a  banana 
peel  at  Mr.  Appleboy's  tall  hat.  The  latter,  see- 
ing his  disadvantage,  responds: 

"My  name  is  Silas  Appleboy,  and  I  am  a  tax- 
payer and  freeholder.  I  demand  that  you  arrest 
this  woman."  The  policeman,  somewhat  im- 
pressed by  the  other's  vehemence  and  the  state- 
ment that  he  is  a  freeholder  (the  meaning  of 
which  the  official  naturally  does  not  understand), 
inquires  a  little  more  genially  where  the  lady  is. 

"In  that  shop,"  replies  her  master.  The  crowd, 
with  a  whoop,  rushes  at  the  door,  but  the  pawn- 
broker is  standing  inside  in  an  attitude  of  defence. 
The  policeman,  closely  followed  by  Appleboy, 
pushes  his  way  through  the  mob,  and  raps  loudly. 

"Stand  back  there,  now,"  shouts  the  officer, 
waving  his  club.  The  small  boys  shrink  back,  leav- 
ing Appleboy  in  the  centre  of  the  ring.  The 
pawnbroker  opens  the  door.  Maria  is  upon  her 
knees,  calling  vaguely  upon  Heaven  to  defend 
her.  The  silver  teapot  reposes  upon  the  coun- 
ter. The  officer  grasps  Maria  roughly  by  the 
shoulder  and  yanks  her  to  her  feet. 

135 


The  Prisoner  at  the  Bar 

"Get  up  there  and  pull  yerself  together!"  he 
exclaims.  "What's  yer  name?'* 

"Me  name  is  Maria  Holohan,"  she  replies  hys- 
terically. 

"Do  yer  know  that  man?"  continues  the  officer, 
pointing  at  Appleboy. 

"Shure,  I  know  him,"  is  the  answer.  "Haven't 
I  worked  for  him  for  fourteen  years?" 

"Did  you  steal  his  teapot?"  asked  the  officer. 

"Oh,  Holy  Mother!  Holy  Mother!"  wails 
Maria.  "I  took  a  dhrop  too  much,  an1  shure  I 
didn't  know  what  I  was  doin'  at  all,  at  all." 

"Well,  the  first  thing  you'll  do,"  remarks  the 
officer,  "  '11  be  to  walk  to  the  house.  Come  on, 
now!"  And  forthwith  he  drags  Maria  to  the 
door,  and,  holding  her  firmly  by  the  wrist, 
marches  her  upon  the  sidewalk.  Mr.  Appleboy, 
the  teapot  clasped  to  his  bosom,  follows  imme- 
diately behind.  Their  appearance  is  greeted  with 
vociferous  approval  by  the  waiting  crowd,  who 
fall  in  and  escort  the  group  towards  the  police 
station.  But  Maria's  strength  fails  her,  and, 
presently,  with  a  groan  she  collapses.  Perhaps 
the  drop  too  much  has  taken  effect  in  her  legs.  At 
all  events,  despite  the  efforts  of  the  officer,  she 
refuses  to  move,  and  remains  limp.  The  crowd 
has  now  become  so  dense  as  entirely  to  obstruct 
all  traffic  in  the  street,  long  lines  of  electric  cars 

136 


The  Law's  Delays 

leading  in  each  direction  up  the  avenue,  motor- 
men  and  conductors  forming  a  strong  adjunct  to 
those  giving  gratutious  advice.  Two  grocery 
wagons  get  their  wheels  locked  in  the  throng. 
Some  one  telephones  to  the  station  house.  At 
last  the  distant  clanging  of  the  patrol  is  heard. 
The  crowd  scatters,  the  carts  and  cabs  extricate 
themselves,  and  the  "hurry-up  wagon"  backs  to 
the  sidewalk  with  a  flourish,  two  more  coppers 
swinging  on  behind.  They  bundle  Maria  un- 
ceremoniously inside,  escort  her  erstwhile  em- 
ployer with  hardly  more  courtesy  into  the  same 
vehicle,  and  toss  in  the  teapot:  the  gong  rings: 
and  Mr.  Appleboy  starts  upon  his  task  of  bring- 
nig  an  evil-doer  to  justice,  and  proving  himself 
worthy  of  the  proud  title  of  citizen. 

The  drive  to  the  station  seems  hours  long,  and 
the  fumes  of  whiskey  are  very  evident  upon 
Maria.  The  officers  are  taciturn.  The  nose  has 
been  knocked  off  the  teapot.  Mr.  Appleboy, 
holding  himself  tense  in  his  seat,  endeavors  not 
to  be  jostled  against  the  lady  who  has,  previously, 
cooked  his  meals.  Now  and  again  she  addresses 
him  in  no  complimentary  terms.  She  has  by  this 
time  reached  the  belligerent  stage,  although  she 
has  no  thought  of  denying  her  guilt. 

The  wagon  draws  up  with  a  jerk  in  front  of 
the  precinct  station  house.  Into  a  second  crowd 

137 


The  Prisoner  at  the  Bar 

of  gamins  and  loafers,  Appleboy,  still  clutching 
the  noseless  teapot,  emerges.  He  is  followed  by 
two  policemen,  half  carrying,  half  supporting 
Maria.  The  doorman  allows  the  party  to  enter, 
while  repelling  the  inquisitive  throng  who  would 
like  to  accompany  them. 

Once  inside,  Maria  and  her  master,  little  dis- 
tinction being  made  between  them,  are  brought 
before  the  sergeant,  who  reclines  behind  a  desk 
upon  an  elevated  platform.  This  official  interro- 
gates Mr.  Appleboy  somewhat  brusquely  as  to 
his  name,  address  and  the  charge  which  he  makes 
against  the  defendant,  laboriously  copying  the 
answers  in  the  "blotter."  Maria,  petrified  with 
terror,  absolutely  refuses  to  answer  any  questions, 
and  mutters  incoherently  to  herself.  The  ser- 
geant, satisfied  of  Mr.  Appleboy's  respectability 
by  reason  of  his  highly  polished  hat  and  gold- 
headed  cane,  commits  the  prisoner  to  a  cell  to 
await  the  hearing  before  the  magistrate  on  the 
following  morning.  As  the  charge  is  one  of 
felony,  and  as  none  of  her  friends  as  yet  know  of 
her  detention  or  arrest,  the  question  of  her  re- 
lease upon  bail  does  not  arise,  and  after  the  ser- 
geant has  directed  Mr.  Appleboy  to  attend  at  the 
nearest  police  court  the  next  morning  at  half- 
past  eight  punctually,  that  gentleman  escapes 
down  the  steps  of  the  precinct  house,  feeling  that 

138 


The  Law's  Delays 

he  has  lived  through  untold  ages  of  misery.  The 
crowd  cheers  him  as  he  descends,  and  he  hastens 
homeward,  the  joy  of  release  tempered  only  by 
the  prospective  agony  of  the  morrow.  The  nose- 
less teapot  remains  in  the  custody  of  the  sergeant 
at  the  station  house. 

We  can  imagine  Appleboy  telling  the  story  to 
his  wife  and  children.  How  heroically  he  figures 
in  his  own  account  of  the  proceedings!  How 
picturesquely  penitent  is  Maria !  How  dramatic 
her  capture  in  the  very  act  of  disposing  of  the 
stolen  property!  How  the  policemen  cower  at 
the  majestic  Appleboy's  approach!  By  the  time 
the  old  fellow  has  taken  his  coffee  and  lighted  his 
perfecto  he  is  almost  restored  to  his  former  condi- 
tion of  pompous  dignity.  His  intention  to  vindi- 
cate his  position  as  a  freeholder  and  to  see  that 
the  law  shall  take  its  course  is  revived,  and  he 
dreams  of  Maria  hurtling  through  the  abyss  with 
dozens  of  silver  teapots  tied  about  her  ample 
neck. 

DELAY  THE   FIRST 

The  next  morning  Appleboy  orders  his  car- 
riage and  drives  in  state  to  the  police  court.  His 
tall  hat  secures  him  easy  access  to  a  long  room 
with  a  low  ceiling,  in  which  the  air  is  full  of 
strange  odors. 

139 


The  Prisoner  at  the  Bar 

Across  the  end  of  the  court,  two-thirds  of  the 
way  towards  the  front,  stretches  an  iron  grating 
through  which  a  gate  admits  police  officers,  local 
politicians,  lawyers  and  the  witnesses  in  any  ex- 
amination actually  in  progress.  He  enters  the 
room  exactly  at  eight-thirty.  Already  it  is 
crowded,  and,  having  no  business  inside  the  gate, 
he  is  forced  to  sit  upon  a  bench  in  company  with 
various  friends  of  the  divers  defendants  who  have 
been  committed  during  the  night. 

It  is  early  as  yet,  and  a  substantial  breakfast 
has  put  Mr.  Appleboy  in  an  optimistic  frame  of 
mind.  Once  the  judge  arrives  how  quickly  the 
case  will  be  disposed  of  and  our  hero  receive  the 
thanks  of  the  magistrate  for  acting  as  he  has 
done!  But  alas!  Already  a  long  file  of  officers 
is  forming  at  the  left  of  the  desk  behind  the  grat- 
ing. Each  officer  has  located  at  a  safe  distance 
one  or  more  "drunks"  or  "disorderlies"  whom 
he  has  gathered  in  during  the  preceding  evening, 
and  who  have  spent  the  night  in  the  station  house. 
The  officers  have  recently  come  off  post  and  now 
are  waiting  sleepily  for  the  arrival  of  the  magis- 
trate to  dispose  of  "The  Watch." 

By  a  quarter  to  nine  the  line  has  reached  im- 
mense proportions.  Twenty  officers  stand  in 
single  file  and  the  procession  of  prisoners  reaches 
to  the  doorway  of  the  cells.  In  the  meantime  the 

140 


The  Law's  Delays 

jam  in  the  room  itself  has  become  greater,  and 
the  heat  and  odors  more  oppressive.  Mr.  Apple- 
boy  wipes  his  brow  with  his  silk  handkerchief. 
He  wishes  he  had  brought  his  wife's  smelling 
salts. 

Presently  he  discerns  amid  the  crowd  inside  the 
railing  the  now  familiar  features  of  Pat,  the  offi- 
cer, who  beckons  him  to  come  within. 

Our  friend  rises  to  his  feet  to  obey,  but  in- 
stantly another  officer  bawls:  "Sit  down  there, 
you !"  and  Appleboy  collapses. 

"Hi,  there,  Rounds,  let  that  old  guy  in,  will 
ye?"  asks  Pat  good-naturedly. 

The  roundsman  condescendingly  nods  to  the 
grizzled  guardian  of  the  gate,  who  holds  it  open 
just  wide  enough  to  allow  our  hero  to  squeeze 
through. 

"Mornin',"  remarks  Pat,  chewing  vigorously. 

"Good-morning,  officer,"  replies  Appleboy. 
"Where  is  the  prisoner?" 

"She  came  in  the  wagon  half  an  hour  ago," 
says  Pat.  "Step  up  while  he  makes  out  the  com- 
plaint. After  that  we'll  arrange  her." 

So  Pat  and  his  complainant  join  the  mob  which 
is  besieging  the  clerk's  desk,  and  finally  secure 
enough  of  that  functionary's  scattered  attention 
to  induce  him  to  draw  up  a  brief  statement  of  the 
facts  in  the  case.  Pat  disappears  into  the  cells  to 

141 


The  Prisoner  at  the  Bar 

emerge  in  a  few  minutes,  escorting  the  bewildered 
Maria.  She  is  then  "arranged,"  which  in  police 
parlance  is  to  say  she  is  arraigned.  She  has  no 
counsel,  and  evidently  supposes  her  interrogator 
to  be  the  judge,  for  she  insists  on  addressing  him 
as  "Yer  onner."  The  clerk  briefly  warns  her  of 
her  rights  and  puts  the  few  necessary  questions, 
which  Maria  answers  in  a  quavering  voice.  It  is 
obvious  that  she  expects  to  be  at  once  deported 
to  Sing  Sing  or  the  "Island." 

"Name?" 

"Maria  Holohan,  yer  onner." 

"Address?" 

"Two  East  Seventy-first  Strate,  yer  onner,  wid 
this  man  here."     (Indicating  Appleboy.) 

"Occupation?" 

"Shure,  'tis  his  cook,  Oi  am."     ("Housework" 
puts  down  the  clerk.) 

"How  long  have  you  lived  at  this  last  ad- 
dress?" 

"Fourteen  year,  yer  onner,  come  St.  Michael's 
Day." 

"What  have  you  to  say,  if  anything,  relative 
to  the  charge  against  you?" 

(Maria  mutters  incoherently)  "Shure  Oi  took 
the  taypot,  all  right,  all  right." 

"Guilty?"  asks  the  clerk. 

"Guilty,"  whispers  Maria. 
142 


The  Law's  Delays 

"That's  all,"  says  the  other.  "Stand  bade 
there  and  give  some  one  else  a  chance." 

Pat,  holding  the  papers  in  his  hands,  escorts 
Maria  to  the  end  of  the  line,  and  Appleboy  re- 
turns to  his  seat.  In  his  deposition  he  has  stated 
that  his  occupation  is  that  of  "Bank  President" 
and  he  has  instantly  observed  a  change  of  atti- 
tude in  those  about  him.  "Rounds"  even  expels 
two  unsavory  characters  for  the  purpose  of  mak- 
ing room  for  him  in  the  front  row. 

In  a  moment  more  the  judge  enters  hurriedly, 
takes  his  seat  at  the  desk,  and  begins  rapidly  to 
dispose  of  the  file  of  prisoners  before  him.  One 
after  another  the  officers  press  forward,  make  a 
brief  statement  of  the  circumstances  of  the  arrest, 
and  the  prisoner  is  led  away  with  a  fine,  a  lecture, 
or  a  sentence  of  a  few  days  in  the  workhouse. 
There  is  no  opportunity  for  other  cases  until  all 
the  "disorderlies"  and  street-walkers  have  been 
dealt  with.  Half-past  nine  comes,  quarter  of  ten 
and  ten  o'clock,  the  hour  at  which  Mr.  Appleboy 
usually  makes  a  leisurely  descent  to  his  office,  but 
still  there  is  no  respite.  The  monotonous  busi- 
ness continues.  But  Mr.  Appleboy's  time  is  valu- 
able, and  he  begins  to  fume  and  fidget.  He  thinks 
of  the  dollars  he  is  losing  by  performing  his  duty 
as  a  citizen. 

Pat  has  gradually  neared  the  desk.  At  length 
143 


The  Prisoner  at  the  Bar 

there  is  but  one  more  case  to  be  heard,  and  the 
"Rounds"  summons  our  hero  once  more  inside. 
Maria  is  thrust  in  front  of  the  platform  and 
stands  with  her  hands  on  the  rail.  It  has  seemed 
an  easy  thing  to  Mr.  Appleboy  for  a  complainant 
to  tell  his  story,  and  he  has  smiled  scornfully  to 
himself  at  the  wandering  and  unconvincing  state- 
ments he  has  heard  during  the  morning,  but  as  he 
is  pushed  upon  the  platform  under  the  sharp  eye 
of  the  magistrate,  his  courage  begins  to  ooze  out 
of  him.  He  wishes  again  for  the  hundredth  time 
he  had  let  Maria  go  off  with  the  old  teapot.  The 
very  thought  of  tea  sickens  him. 

"Next,"  calls  the  "Rounds,"  as  a  dowdy  young 
woman  is  led  away,  weeping  hysterically. 

Pat  hands  up  the  papers. 

"Maria  Holohan,"  mutters  the  judge,  running 
his  eye  over  the  "information."  "Stole  a  tea- 
pot,— um — um —  Is  this  the  defendant?" 

"He  indentifies  her,"  answers  Pat. 

The  judge  turns  to  Appleboy. 

"Are  you  the  complainant?"  he  asks  briskly. 

"Y-e-e-s,"  answers  our  hero,  "I  am.  This  is 
my  cook." 

"That  will  do,"  says  the  magistrate.  "Answer 
only  the  questions  that  are  put  to  you.  Do  you 
swear  that  the  statements  contained  in  this  com- 

144 


The  Law's  Delays 

plaint  are  the  truth,  the  whole  truth,  and  nothing 
but  the  truth,  so  help  you,  God?" 

"I  do,"  replies  Appleboy  with  vigor. 

Luckily  for  Appleboy,  no  lawyer  appears  for 
the  delinquent  Maria.  Unfamiliar  with  all  the 
vagaries  and  devices  of  the  criminal  law,  this 
lady,  realizing  that  she  has  been  caught  red- 
handed,  foolishly  supposes  that  there  is  nothing 
for  her  to  do  but  to  cry  for  forgiveness  and  beg 
for  mercy. 

"Do  you  desire  counsel?"  asks  the  judge. 

Maria  stares  vaguely. 

"Have  ye  got  a  lawyer?"  interprets  the  nearest 
copper. 

"Don't  want  no  lawyer!"  snaps  Maria. 

"I  see  you  plead  guilty,"  says  the  judge. 

"Shure,"  she  answers. 

"Well,"  says  the  magistrate,  "as  she  pleads 
guilty,  I  will  not  detain  you  further.  Your  cook, 
eh?  Well,  well,  it's  too  bad!  Why  will  they  do 
such  things  ?  I  am  glad  you  did  not  lose  the  tea- 
pot. That  is  all." 

Maria  is  led  away,  while  Mr.  Appleboy  de- 
scends from  the  platform,  to  be  followed  by  some 
other  righteously  indignant  complainant. 

The  whole  transaction  has  occupied  less  than  a 
minute  and  a  half.  In  order  to  accomplish  it, 
Mr.  Appleboy  has  remained  in  court  from  half- 

145 


The  Prisoner  at  the  Bar 

past  eight  In  the  morning  until  a  quarter  to 
twelve. 

"Thank  goodness,"  he  says  to  himself,  "it  is 
all  over  now.  The  rest  will  be  plain  sailing." 
Ah,  how  little  do  the  Appleboys  know  of  the  ad- 
ministration of  criminal  justice!  Pat  accompa- 
nies him  to  his  carriage,  expressing  regret  that 
the  matter  could  not  have  been  disposed  erf  more 
speedily.  Appleboy  is  not  ungenerous.  He 
always  tips  the  colored  porter  in  the  sleeping-car 
most  liberally,  but  although  it  is  obvious,  possibly, 
that  Pat  would  like  a  drink  and  some  cigars, 
Appleboy,  believing  that  by  accommodating  him 
he  would  be  committing  a  felony  or,  at  least,  a 
misdemeanor,  coldly  bids  him  good-afternoon, 
and  Patrick,  crestfallen,  returns  to  the  precinct 
house. 

Meanwhile  the  magistrate  fixes  bail  for  Maria 
at  five  hundred  dollars,  and  the  teapot  is  tagged 
and  returned  to  the  custody  of  the  sergeant  at  the 
station.  Tired  out,  but  feeling  that  "a  duty  well 
performed  is  a  rainbow  to  the  heart,"  Mr.  Apple- 
boy  seeks  the  bosom  of  his  family. 

DELAY  THE  SECOND 

Cookless,  the  Appleboys  struggle  through  the 
following  week.  It  is  in  the  height  of  the  sea- 
son and  cooks  are  scarce;  they  are  also  ill-tem- 

146 


The  Law's  Delays 

pered;  and  in  five  days  Mrs.  Appleboy  has  tried 
and  dismissed  three.  The  family,  dinnerless, 
nightly  seek  a  neighboring  restaurant,  and  en- 
deavor to  console  themselves  with  the  theatre. 
But  after  the  fourth  night  this  bores  them.  They 
begin  to  long  for  Maria's  omelets  and  Irish  stew. 
After  fourteen  years  one  gets  used  to  a  particular 
kind  of  pudding. 

"I  almost  wish,"  said  Appleboy  to  his  wife 
when  they  are  alone,  "that  I  had  not  done  any- 
thing about  Maria,  but  just  let  her  come  back 
and  cook  for  us.  I  don't  think  she  would  have 
tried  to  steal  the  teapot  a  second  time." 

"But  how  do  you  know,  Silas?"  replies  his 
wife.  "Think  of  the  orgies  that  may  have  been 
going  on  in  the  kitchen  in  the  last  fourteen  years!" 

"True,  true,"  answers  Appleboy,  and  again  re- 
news his  determination  to  see  the  thing  through 
to  the  bitter  end.  Then  Mr.  Appleboy  receives 
at  his  office  a  green  slip  calling  for  his  attendance 
on  the  morrow  before  the  grand  jury  of  the 
County  of  New  York,  promptly  at  ten  o'clock. 
He  has  never  been  to  the  Criminal  Courts  build- 
ing in  his  life.  He  only  supposes  vaguely  that  it 
is  situated  somewhere  near  the  "wholesale  dis- 
trict" and  not  far  from  the  Italian  quarter.  He 
associates  it  with  trips  to  Chinatown,  the  East 
Side  and  the  Bowery. 

147 


The  Prisoner  at  the  Bar 

After  being  thoroughly  shaken  up  by  a  long 
journey  over  the  cobblestones  in  his  carriage,  Mr, 
Appleboy  finds  himself  on  Franklin  Street,  be- 
tween the  Tombs,  on  the  one  hand,  and  the  Crim- 
inal Courts  building  upon  the  other.  Over  his 
head  runs  "The  Bridge  of  Sighs."  A  congrega- 
tion of  loafers,  lawyers,  runners,  policemen  and 
reporters  linger  upon  the  sidewalk.  Unfamiliar 
with  the  means  of  entrance  and  exit,  Appleboy 
turns  the  corner  and  climbs  two  long  flights  of 
stone  steps  upon  the  outside  of  the  building  in- 
stead of  utilizing  the  side  entrance  upon  the 
ground  floor  and  taking  the  elevator.  He  enters 
an  enormous  hall  around  which,  on  all  four  sides, 
corridors  reach  to  the  top  of  the  building.  A 
motley  collection  of  people  are  hurrying  hither 
and  thither.  After  some  difficulty,  Appleboy  dis- 
covers a  lift  packed  with  odoriferous  Italians, 
men  with  bandaged  eyes  and  faces,  small,  half- 
clad  children,  and  divers  persons  smoking  enor- 
mous, evil-smelling  cigars,  whom  he  later  dis- 
covers to  be  members  of  the  legal  profession. 
The  car  stops  at  the  third  floor. 

"District  attorney  and  grand  jury,"  calls  the 
elevator  man.  "Grand  jury  to  the  right." 

Appleboy  gets  off  with  the  rest  of  the  mob, 
and  wanders  down  a  narrow  corridor  past  rows 
of  offices,  until  he  comes  to  a  policeman  standing 

148 


The  Law's  Delays 

by  the  door  of  a  small  room  crowded  with  people. 
There  is  hardly  space  to  breathe,  much  less  to  sit 
down.  From  time  to  time  a  bell  jingles  in  the 
distance,  a  door  into  another  room  opens,  some- 
body comes  out,  and  an  officer  calls  out  a  name. 
Its  owner  hastily  responds,  is  shot  through  the 
door  into  the  other  room,  and  the  door  closes 
again.  This  process  goes  on  interminably.  In 
a  corner,  clerks  separated,  by  a  railing  are  busily 
engaged  in  making  out  subpoenas  and  filling  in 
certificates  of  attendance.  Police  officers  are 
everywhere.  Appleboy  takes  his  stand  by  the 
door.  It  is  half-past  ten  o'clock.  He  has  no 
means  of  knowing  when  he  will  be  summoned  be- 
fore the  august  body  who  are  deliberating  in  the 
next  room.  He  has  a  craving  to  smoke,  although 
he  makes  it  a  rule  never  to  do  so  before  six 
o'clock  in  the  afternoon.  He  has  left  his  news- 
paper at  home,  and  has  yielded  up  his  subpoena 
to  the  officer  at  the  door.  There  is  nothing  to 
occupy  his  attention  except  the  sour  visages  of 
those  about  him.  They  belong  to  a  class  of  peo- 
ple who  instinctively  fill  him  with  disgust,  being 
representatives  of  what  Appleboy  and  his  wife 
are  accustomed  to  term  the  "masses." 

Person  after  person  is  summoned  into  the  other 
room,  but  no  one  seems  to  want  the  banker.  Pat 
is  there,  to  be  sure,  but  he  is  at  his  usual  pastime, 

149 


The  Prisoner  at  the  Bar 

enjoying  the  delights  of  mastication.  He  no 
longer  has  any  "use"  for  Appleboy.  At  about  a 
quarter-past  eleven,  the  officer  beside  the  outer 
door  calls  the  name  of  Silas  Appleboy.  Our  hero, 
believing  that  at  last  his  turn  has  arrived,  starts 
from  his  seat,  only  to  be  directed  to  "Come 
here !"  by  the  officer.  He  discovers  that  he  has 
been  summoned  to  confer  with  a  representative 
of  the  district  attorney,  who  invites  him  into  a 
neighboring  office. 

"Mr.  Appleboy,"  says  this  young  gentleman 
when  the  two  are  comfortably  seated,  "I  see  by 
the  papers  in  the  case  that  a  Maria  Holohan  stole 
a  teapot  from  you.  Under  what  circumstances 
was  the  theft  committed?" 

Mr.  Appelboy,  who  supposes  that  the  merits  of 
his  case  have  been  long  since  known  personally  to 
the  district  attorney,  commences  at  the  begin- 
ning and  rehearses  all  his  woes  and  difficulties. 
The  assistant  listens  courteously,  and  then,  with- 
out comment,  bows  Appleboy  out,  who  returns 
once  more  to  the  ante-chamber  of  the  grand  jury. 
His  seat  has,  meanwhile,  been  usurped  by  a  cor- 
pulent lady  in  deep  mourning,  and  its  former  oc- 
cupant is  forced  to  stand  in  the  corridor  for  an 
hour  longer.  During  this  period  he  perchance 
has  the  annoyance  of  hearing  Pat  remark  to  a 
fellow  officer  in  no  uncertain  tones  that  "the  old 

150 


The  Law's  Delays 

guy  is  no  good — a  'dead  one' — I  didn't  even  get 
a  smoke  off  him." 

The  ante-chamber  gradually  has  been  thinning 
out.  Finally  Appleboy  gets  a  seat.  The  bell 
keeps  on  ringing  until  only  he  and  a  man  with 
a  broken  nose  are  left.  At  last  a  policeman  hur- 
ries out  of  the  open  door,  the  bell  rings  again, 
and  the  clerk  at  the  desk  shouts  "Appleboy! 
Appleboy!"  Appleboy  arises. 

"Right  in  through  that  door,"  directs  the 
clerk,  and  Mr.  Appleboy,  shrinking,  enters  tim- 
idly the  chamber  of  horrors  and  finds  himself  in 
the  centre  of  a  semi-circle  of  gentlemen  of  vary- 
ing ages  and  appearances.  To  Appleboy  a  thou- 
sand eyes  seem  peering  at  him  from  every  side. 
The  silence  is  appalling.  He  stands,  silk  hat  in 
hand,  feeling  like  a  very  small  boy  who  has  been 
called  before  the  head  master  to  be  punished  for 
some  offence.  A  man  in  the  middle  of  the  semi- 
circle and  directly  in  front  of  him,  is  scratching 
busily  with  his  pen.  The  grand  jurors  whisper 
among  themselves.  Presently  the  foreman  looks 
up,  observes  Appleboy  standing,  and  remarks: 
"Sit  down,  sir."  Mr.  Appleboy  sinks  into  a 
chair  beside  the  stenographer.  The  foreman 
glances  at  the  indictment  already  prepared,  and 
then  says  sharply:  "Stand  up,  sir, — and  be 
sworn!" 


The  Prisoner  at  the  Bar 

A  Bible  is  forced  into  his  unenthusiastic  hand. 

"You  do  solemnly  swear  the  evidence  you 
shall  give  to  the  Grand  Inquest  upon  the  com- 
plaint against  Maria  Holohan  shall  be  the  truth, 
the  whole  truth,  and  nothing  but  the  truth:  So 
help  you  God!" 

Mr.  Appleboy  replies  faintly:  "I  do,"  and 
makes  an  ineffectual  attempt  to  kiss  the  Bible. 

"Sit  down !"  directs  his  interlocutor.  "Ahem ! 
You  had  a  teapot  worth  over  fifty  dollars,  and 
your  cook  stole  it?  Did  you  see  her?" 

"Yes,"  answers  Appleboy,  and  in  a  few  words 
describes  the  occurrence.  The  foreman  sweeps 
the  grand  jury  with  his  eye. 

"Any  questions?"  he  asks.  There  is  no  re- 
sponse from  the  others. 

"That  is  all,  sir,"  says  the  foreman.  "I  see 
that  the  woman  pleaded  guilty  in  the  police 
court.  Good-morning." 

Appleboy  takes  his  hat  and  retires.  Two 
hours*  wait  for  an  examination  occupying  thirty 
seconds!  He  has  heard  of  the  "law's  delays," 
now  he  knows  what  they  are.  The  bell  rings 
again  as  he  is  making  his  way  out  into  the  corri- 
dor, and  the  man  with  the  broken  nose  stumbles 
in  through  the  door  by  which  our  friend  has 
made  his  exit. 

152 


The  Law's  Delays 

DELAY  THE  THIRD 

Mr.  Appleboy  now  believes  that  his  troubles 
are  over,  for  he  has  consulted  his  family  lawyer 
in  order  to  make  sure  that  everything  is  all  right, 
and  has  learped  that  since  Maria  has  pleaded 
guilty  in  the  police  court,  she  will,  after  her  in- 
dictment, undoubtedly  do  likewise  in  the  General 
Sessions. 

Two  days  later  Appleboy  receives  a  subpoena 
to  attend  in  "Part  I  of  the  Court  of  General  Ses- 
sions of  the  Peace"  as  complainant  in  the  case 
of  "The  People  of  the  State  of  New  York 
against  Maria  Holohan."  Down  he  goes  and 
sits  for  a  full  hour  in  an  ice-cold  court-room 
which  is  thronged  with  policemen,  irate  complain- 
ants, and  sympathizing  friends  of  the  defendants, 
until,  among  the  line  of  bedraggled  prisoners, 
who  are  brought  in  batches  of  from  four  to  six 
from  the  Tombs  through  a  little  door  in  the  back 
of  the  room,  he  recognizes  the  erstwhile  queen 
of  his  kitchen — Maria,  the  unapproachable.  She 
looks  much  the  worse  for  wear.  The  feathers 
of  her  hat  hang  disconsolate.  In  addition  she  is 
minus  her  collar  and  goes  clumping  around  the 
room  after  the  policeman  as  if  she  had  never 
broiled  a  lobster  or  tossed  a  flapjack.  As  she 
turns  the  corner  by  the  jury  box  she  spies  her 

153 


The  Prisoner  at  the  Bar 

lawyer,  and  immediately  brightens.  They  hold 
an  animated  conversation  in  whispers  as  he  takes 
his  place  beside  her  at  the  bar. 

"Maria  Holohan,"  says  the  clerk  severely, 
"you  have  been  indicted  by  the  grand  jury  for 
grand  larceny  in  the  first  degree.  Do  you  plead 
guilty  or  not  guilty?" 

Appleboy  starts  from  his  seat  almost  ready  to 
call  out  in  explanation:  "She  pleads  guilty,  your 
honor,"  but  before  he  has  an  opportunity  to  do 
so,  or  to  suffer  any  of  the  uncomfortable  conse- 
quences of  such  an  act,  the  weazened-faced  little 
attorney  representing  Maria  responds  sharply: 
"Not  guilty." 

Appleboy  is  stunned.  Why,  the  woman  has 
already  confessed  her  guilt,  after  having  been 
caught  in  the  act!  What  absurdity!  What  non- 
sense! But  the  plea  is  taken;  the  lawyer  asks 
that  a  date  be  set  for  trial  not  nearer  than  a  week 
on  the  ground  that  he  may  conclude  upon  investi- 
gation to  advise  his  client  to  change  her  plea,  and 
because  he  has  a  witness  living  outside  the  State; 
and  the  court  grants  this  application. 

Not  guilty!  As  Maria  tramps  out  in  company 
with  other  defendants,  Appleboy  makes  up  his 
mind  that  he  will  see  what  all  this  means,  and 
steps  forward  through  the  gate  to  speak  in  per- 
son to  the  representative  of  the  district  attorney. 

154 


The  Law's  Delays 

A  hand  is  laid  upon  his  shoulder,  and  he  is  hauled 
back  unceremoniously. 

"Here!   Where  are  you  going?" 

"I  want  to  speak  to  the  district  attorney,"  he 
replies  meekly. 

"Sit  down,"  replies  the  officer.  "He  can't 
speak  to  you  now.  Look  him  up  in  his  office 
after  court  adjourns." 

Mr.  Appleboy,  chastened  by  experience,  makes 
no  protest  and  retires  from  the  room.  He  has 
lost  too  much  money  already  by  absence  from 
his  office  to  make  it  worth  his  while  to  wait  until 
the  adjournment  of  the  court,  so  he  goes  down 
town  to  attend  to  his  business,  and  at  the  first 
opportunity  calls  up  his  attorney  to  inquire  what 
it  all  means.  The  lawyer  responds  briefly  that 
the  mere  fact  that  the  defendant  has  pleaded 
guilty  in  the  police  court  does  not  preclude  her 
from  changing  her  mind  and  denying  her  guilt 
later  when  called  upon  to  plead  to  an  indictment. 
He  regrets  the  inconvenience  to  which  his  client 
has  been  put,  and  suggests  by  implication  that  it 
would  have  been  well  if  Mr.  Appleboy  had  con- 
sulted him  before  taking  any  action  in  the  mat- 
ter. Appleboy  has  already  come  to  this  conclu- 
sion himself. 

DELAY  THE  FOURTH 

A  week  later  Appleboy  receives  another  sub- 
155 


The  Prisoner  at  the  Bar 

poena  which  commands  him  under  penalty  to  call 
at  the  district  attorney's  office  at  half  after  ten 
o'clock  and  "Ask  to  see"  Mr.  John  Smith,  whom 
he  finds,  after  some  difficulty,  in  a  little  office  in 
the  same  building  and  corridor  through  which  he 
passed  when  he  appeared  before  the  grand  jury. 

"Is  this  Mr.  Smith?"  he  inquires. 

"Yes,"  answers  the  young  man.  "What  do 
you  want?" 

"I  have  a  subpoena,"  replies  the  other,  "to  see 
you  this  morning." 

"Oh,  yes,  I  remember,"  remarks  the  assistant. 
"You're  in  the  Holohan  case,  aren't  you? 
Woman  stole  your  teapot,  didn't  she?" 

"Yes,"  mutters  Mr.  Appleboy,  "she  did,  some 
time  ago.  What  can  I  do  for  you?" 

"Well,  I  want  you  to  tell  me  about  the  case," 
mildly  explains  the  assistant.  "Who's  Maria 
Holohan,  anyway?" 

So  Appleboy  begins  at  the  beginning  and  tells 
the  whole  story  through,  while,  from  time  to 
time,  the  assistant  laughs  softly  to  himself. 
When  the  history  is  concluded,  the  young  man 
leans  back  in  his  chair,  blows  a  ring  of  smoke 
towards  the  ceiling  and  exclaims :  "That's  always 
the  way !  Some  miserable  little  shyster  gets  hold 
of  'em  in  the  Tombs  and  swears  that  he  can  get 
'em  off,  no  matter  how  plain  the  facts  are,  or 


The  Law's  Delays 

even  if  they  have  pleaded  guilty  in  the  police 
court.  Well,  I'll  make  a  note  of  the  case,  and 
when  it  comes  up  for  trial  you'll  get  a  subpoena. 
Sorry  to  have  had  to  bother  you.  Good-morn- 
ing!" 

DELAY  THE  FIFTH 

Appleboy  departs.  Three  days  later  he  gets 
another  subpoena  to  appear  before  the  Court  of 
General  Sessions.  When  the  case  is  called,  how- 
ever, Maria's  lawyer  gets  up  and  moves  for  an- 
inspection  of  the  grand  jury  minutes  upon  the 
ground  that  there  was  not  sufficient  evidence  be- 
fore that  body  to  warrant  the  finding  of  an  in- 
dictment. The  judge  denies  this  motion  peremp- 
torily, since  there  has  already  been  a  hearing  in 
the  police  court.  Upon  this  the  attorney  states 
that  he  is  actually  engaged  in  a  trial  of  another 
action  elsewhere.  The  case  therefore  "goes 
over,"  of  necessity.  Nearly  three  weeks  have 
now  elapsed  since  the  theft.  Presently  Appleboy 
gets  another  subpoena.  He  trots  down  to  court 
half  an  hour  before  the  opening.  The  case  is 
marked  "Ready."  He  is  told  to  remain  in  court, 
but  some  other  case  is  already  on  trial,  having 
lasted  over  from  the  day  before,  and  at  noon  it 
is  still  in  full  swing.  The  court  adjourns  for  an 
hour,  from  one  to  two.  Appleboy  returns  obedi- 

157 


The  Prisoner  at  the  Bar 

ently  at  that  time,  but  the  case  which  was  on 
trial  in  the  morning  continues  throughout  the 
entire  afternoon.  He  departs  at  four  o'clock, 
furious. 

Next  morning  he  is  dragged  down  again. 
This  time,  however,  the  case  against  Holohan 
is  adjourned  without  date,  owing  to  the  fact  that 
Maria's  counsel  has  applied  to  the  court  for  a 
commission  to  take  testimony  in  Boston.  They 
intimate  that  they  may  interpose  the  defence  of 
insanity,  or  at  least  dipsomania,  and  evince  an 
unaccountable  eagerness  to  examine  Maria's 
great  aunt,  who  is  acting  as  general  housework 
girl  for  a  minister's  family  in  Roxbury,  Mass. 
The  district  attorney  strenuously  opposes  this 
motion.  The  judge,  however,  "takes  the  papers," 
as  he  is  obliged  to  assume  that  the  request  is 
made  in  good  faith. 

DELAY  THE  SIXTH 

Appleboy  hears  nothing  of  the  case  for  an- 
other week.  At  the  end  of  that  time  he  gets  a 
subpoena  of  a  different  color,  and  again  journeys 
down  to  court.  But  this  time  he  first  seeks  out 
Smith  in  his  office  and  asks  if  there  is  any  likeli- 
hood of  the  case  being  tried  that  day.  Mr. 
Smith,  whose  room  is  thronged  with  witnesses, 
tells  Mr.  Appleboy  that  he  is  no  longer  assigned 


The  Law's  Delays 

to  that  part  of  the  General  Sessions  on  whose 
calendar  the  case  appears,  and  that  another 
assistant,  Mr.  Jones,  will  have  to  try  the  case. 
He  therefore  conducts  Mr.  Appleboy  to  an  ad- 
joining office  and  presents  him  to  Jones. 

The  latter  receives  Appleboy  courteously  and 
assures  him  that  he  will  try  the  Holohan  case  the 
very  first  of  all.  They  talk  the  matter  over  and 
unite  in  their  objurgations  against  defendants* 
lawyers  in  general.  Jones,  however,  is  confident 
that  this  time  they  will  succeed  in  disposing  of 
the  matter.  They  adjourn  together  to  the  court- 
room. But  on  the  call  of  the  calendar  Maria's 
lawyer  claims  that  one  of  his  most  material  wit- 
nesses is  absent,  and  that  without  him  his  client's 
interests  would  be  jeopardized.  The  judge,  who 
by  this  time  has  correctly  gauged  the  situation, 
nevertheless  directs  him  to  go  on  with  the  case. 
The  lawyer  then  states  that  he  has  had  a  bad  night 
and  feels  very  unwell.  The  judge  continues  un- 
sympathetic: The  assistant  is  openly  skeptical. 
The  attorney  thereupon  is  suddenly  taken  with 
great  pain  and  retires  for  air  to  the  corridor  out- 
side the  court-room.  Nothing  can  be  done.  Per- 
haps the  lawyer  really  has  a  pain. 

The  assistant  shrugs  his  shoulders  and  an- 
nounces that  he  will  move  the  case  of  Michael 
Angelo  Spaghetti,  indicted  for  assault;  the  de- 

159 


The  Prisoner  at  the  Bar 

fendant  is  ordered  to  the  bar,  and  the  court 
directs  the  clerk  to  announce  that  "no  other  case 
will  be  tried"  that  day. 

Appleboy  drags  himself  with  the  rest  of  the 
throng  through  the  door  into  the  corridor.  This 
is  the  third  time  he  has  practically  given  up  an 
entire  morning  to  appearing  as  complainant  in  a 
case  which  seems  fated  never  to  be  tried.  He 
goes  down-stairs  swearing  vengeance  against 
Maria  and  her  lawyer.  This  performance  is  re- 
peated possibly  some  four  or  five  times  more 
with  variations.  But  he  never  gets  nearer  than 
having  the  case  marked  "ready,"  and  something 
always  intervenes,  Maria's  lawyer  exhibiting  an 
almost  supernatural  cleverness  in  the  invention 
of  excuses. 

On  all  these  occasions,  while  awaiting  the  call 
of  the  calendar,  Appleboy  is  likely  to  sit  in  close 
proximity  to  the  defendant,  who  has  been  re- 
leased on  bail  pending  her  trial,  and  who  casts 
withering  glances  in  his  direction.  Her  brother 
Terence  also  seizes  the  opportunity  presented  by 
the  various  adjournments  to  tell  Appleboy  what 
he  thinks  of  him  and  what  he  intends  to  do  to 
him  after  the  case  has  been  disposed  of. 

The  district  attorney  has  done  everything  in 
his  power  to  force  the  defence  to  trial,  but  his 
every  attempt  has  been  unavailing.  Neverthe- 

160 


The  Law's  Delays 

less,  Appleboy  blames  him  personally  for  every 
idiosyncracy  of  the  law  and  for  every  delay  pro- 
cured by  the  defence. 

DELAY  THE  SEVENTH 

It  was  now  the  end  of  June.  Mr.  Appleboy 
has  planned  to  take  his  family  abroad,  but, 
although  the  annual  adjournment  of  court  for 
vacation  is  at  hand,  through  the  dilatory  tactics 
of  Maria's  pettifogging  counsel,  the  case  is  still 
untried. 

Appleboy  had  been  in  attendance  at  court 
eleven  separate  times,  but  the  only  satisfaction 
which  he  receives  is  the  assurance  that  he  will  be 
paid  fifty  cents  for  each  one  of  his  subpoenas. 
He  is  by  this  time  so  disgusted  with  the  whole 
business  and  has  taken  such  a  fierce  dislike  to  all 
judges,  district  attorneys,  policemen  and  lawyers, 
that  he  would  long  ago  have  thrown  up  the  case 
had  it  not  been  for  the  fact  that  he  has  a  vague 
idea  that  in  so  doing  he  might  be  compounding  a 
felony.  His  desire  to  set  an  example  as  a  model 
citizen  has  long  since  evaporated.  Countless 
members  of  the  Holohan  family  beset  him  at 
home  and  at  the  office,  beseeching  him  for  clem- 
ency. 

It  is  possible  that  without  consulting  the  dis- 
trict attorney,  and  under  the  assumption  that  he 

161 


The  Prisoner  at  the  Bar 

must  remain  at  hand  as  a  witness,  he  gives  up 
Europe  and  takes  a  house  on  the  mosquito  coast 
instead.  His  wife  is  very  unpleasant  about  it. 
She  hints  that  Appleboy  need  not  have  been  so 
vindictive  in  the  first  place.  After  he  has  can- 
celled his  passage,  and  the  whole  family  are 
safely  ensconced  for  the  summer,  Appleboy  dis- 
covers that  cases  in  which  the  defendants  have 
been  released  upon  bail  are  not  tried  during  July, 
August,  and  September.  Appleboy's  feeling  can 
be  easily  imagined.  It  is  needless  to  say  that  he 
does  not  impart  the  information  to  his  lady. 

The  summer  proves  generally  unsatisfactory. 
The  visits  of  Maria's  family  and  their  efforts  to 
persuade  him  not  to  prosecute  are  redoubled. 
Most  of  them  are  domestics  on  their  evenings 
"out,"  plentiful  of  tears  and  reproaches.  It  is 
impossible  to  escape  them.  He  also  receives 
numerous  letters  from  the  lady's  attorney  sug- 
gesting that  he  call  at  the  latter's  office.  These 
he  has  systematically  ignored. 

DELAY  THE   EIGHTH 

October  comes.  The  family  return.  Once 
more  the  familiar  subpoena  is  served  upon  our 
hero  at  his  office.  At  the  sight  of  it  he  scowls 
fiercely  as  he  watches  the  white  smoke  sailing  up 
the  air  shaft  into  the  azure  of  the  sky.  It  is  a 

162 


The  Law's  Delays 

beautiful  autumn  day.  He  recalls  the  police 
court,  and  the  grand  jury,  the  Criminal  Courts 
building,  the  General  Sessions,  and  Maria  and 
Terence,  and  his  miserable  summer !  Vestryman 
Appleboy  mutters  something  very  much  resem- 
bling profanity.  He  thinks:  "If  I  had  not  tried 
to  punish  that  cook  for  stealing  the  teapot,  why  I 
— I  might  be  spending  to-day  in  Rome  or  Paris!" 
The  next  morning,  however,  finds  him  once  more 
on  his  dreary  way  to  court. 

He  consults  Jones  again  upstairs,  who  prom- 
ises by  all  that  is  holy  that  nothing  shall  prevent 
a  trial.  The  case  is  marked  "Ready,"  without 
opposition,  and  the  assistant  district  attorney 
moves  the  indictment. 

"Maria  Holohan  to  the  bar!"  calls  the  clerk, 
as  a  jury  is  rapidly  empanelled. 

Appleboy  is  exultant.  He  is  to  reap  the  re- 
ward of  virtue  and  fidelity  to  principle.  At  last 
the  criminal  is  to  be  made  to  pay  the  penalty. 
He  looks  eagerly  for  Maria. 

"Holohan!  Maria  Holohan!"  reiterates  the 
clerk. 

But  Maria  cornes  not. 

"Call  her  in  the  corridor,"  directs  the  judge 
to  the  officer  at  the  door. 

There  is  a  sudden  silence  in  the  court-room. 
No  response  is  heard  outside. 

163 


The  Prisoner  at  the  Bar 

The  assistant  district  attorney  says  something 
to  the  judge,  who  nods  to  the  clerk. 

"Maria  Holohan,  come  forth  and  answer  pur- 
suant to  the  terms  of  your  recognizance  or  your 
recognizance  will  be  forfeited,"  shouts  that 
official. 

There  is  no  reply. 

"Terence  Holohan,  bring  forth  Maria  Holo- 
han, for  whom  you  are  bound  pursuant  to  the 
terms  of  your  recognizance,  or  your  recognizance 
will  be  forfeited/'  solemnly  intones  the  clerk. 

Terence  arises  and  comes  slowly  forward  from 
where  he  has  been  sitting. 

"Are  you  the  bondsman  in  this  case?"  asks  the 
clerk. 

"Oi  am!"  replies  Terence. 

"Where  is  the  defendant?" 

Terence  looked  sheepish. 

"Where  is  the  defendant?"  repeats  the  clerk 
sharply. 

"In  Ireland!  Bad  cess  to  her!"  answers  Ter- 
ence. "And  divil  a  bit  can  Oi  bring  her  forth," 
he  murmurs,  "whin  she's  in  the  ould  country!" 

"Forfeit  the  bail !"  orders  the  judge. 

Appleboy  grasps  the  arm  of  the  assistant. 

"What's  the  trouble?"  he  asks  anxiously. 

"She's  skipped!"  answers  the  other  with  a 
grim  laugh.  "That's  all." 

164 


The  Law's  Delays 

"H 11— I  mean,  thank  God!"  exclaims 

Vestryman  Appleboy. 

This,  gentle  reader,  is  what  might  happen  to 
you  if  your  cook  should  steal  the  teapot. 


165 


CHAPTER  VIII 

RED  TAPE 

MR.  APPLEBOY  makes  his  way  from  the 
court-room  to  the  corridor  of  the  Crim- 
inal Courts  building  a  sadder,  wiser  and  more 
chastened  member  of  society.  He  now  has  per- 
sonal knowledge  of  the  way  in  which  our  crim- 
inal laws  are  enforced  and  some  idea  of  the  ad- 
ministration of  criminal  justice  in  general  in  New 
York  City.  He  has  been  dragged  down  to  the 
Criminal  Courts  building,  to  the  district  attor- 
ney's office,  the  grand  jury  room,  and  the  General 
Sessions  not  less  than  a  dozen  times,  and  he  now 
takes  a  solemn  vow  that  never,  if  he  can  possibly 
avoid  it,  will  he  be  prevailed  upon  to  go  there 
again. 

Our  defeated  hero  on  reaching  home  finds 
Mrs.  Appleboy  waiting  luncheon  for  him. 

"Well,  Silas,"  she  inquires,  "has  that  woman 
been  convicted  at  last?" 

Her  husband  laughs  somewhat  shamefacedly. 

"No;  I'm  afraid  she  has  gotten  the  best  of 
ns,"  he  replies,  unfolding  his  napkin  and  beam- 

166 


Red  Tape 

ing  pleasantly  upon  his  better  half.  "The  fact  is 
that  she  has  skipped  her  bail — gone  back  to  Ire- 
land." 

"What!"  returns  Mrs.  Appleboy.  "Do  you 
mean  to  say  that  that  woman  has  been  allowed  to 
get  away  after  you  have  been  doing  nothing,  ap- 
parently, for  the  last  six  months  but  spend  your 
time  in  those  miserable  court-rooms  down  there? 
It's  outrageous." 

"Oh,  you  can't  help  that,"  he  replies,  "so  long 
as  prisoners  are  admitted  to  bail — they  have  the 
sacred  privilege,  guaranteed  under  our  Consti- 
tution, of  running  away." 

"Rubbish!"  exclaims  the  lady. 

"And  do  you  know,"  continues  Appleboy,  "it 
really  is  a  tremendous  relief  to  feel  that  I  shall 
not  have  to  take  the  witness  stand  and  be  cross- 
examined  as  to  my  past  career  by  some  miserable 
little  shyster  lawyer  from  the  Tombs." 

"Why,  Silas,"  interrupts  his  wife  sharply, 
"what  have  you  been  doing  that  you  are 
ashamed  to  tell  of?" 

"Oh,  I  didn't  mean  that,"  he  adds  hastily,  "but 
they  ask  such  embarrassing  questions;  I  might 
have  to  tell  how  much  property  I  own,  and  then 
the  tax  collector  would  get  after  us." 

"Speaking  of  property,"  continues  Mrs. 
Appleboy,  "where's  the  teapot?" 


The  Prisoner  at  the  Bar 

Appleboy  gazes  at  her  blankly.  In  the  excite- 
ment attendant  upon  Maria's  non-appearance  in 
the  court-room,  the  family  heirloom  had  com- 
pletely escaped  his  mind. 

"I  forgot  all  about  it,"  confesses  Appleboy. 

"Silas!"  cries  his  wife.  "I  should  think  that 
after  all  your  experiences  you  would  have  had 
sense  enough  not  to  leave  the  Criminal  Courts 
building  without  bringing  that  teapot  with  you. 
How  do  you  know  Maria  hasn't  taken  it  with 
her  to  Ireland?" 

"Oh,  I'm  sure  she  hasn't,"  answers  her  hus- 
band; "it's  down  at  the  police  station;  they 
tagged  it,  you  know,  and  left  it  in  the  custody  of 
the  sergeant." 

"Well,  hurry  through  your  dinner,"  com- 
mands his  wife,  "and  go  right  down  and  get  it. 
I  am  surprised  at  you." 

Appleboy  skips  his  usual  demi-tasse  and  fra- 
grant perfecto,  the  result  of  which  omission  is  to 
leave  him  but  half  satisfied  and  with  a  feeling  of 
incipient  indigestion,  and  betakes  himself  as  fast 
as  possible  to  the  police  station,  where  he  has  last 
seen  the  teapot.  Now  the  police  station,  as  is  a 
way  with  police  stations,  is  located  without  any 
reference  what  ever  to  the  conveniences  of  trans- 
portation, hence  Vestryman  Appleboy  is  obliged 
to  walk  some  ten  or  twelve  blocks  towards  the 

168 


Red  Tape 

river  after  a  heavy  meal,  and  reaches  his  destina- 
tion very  much  out  of  breath  and  in  a  distinctly 
ill  humor.  To  his  surprise  the  doorkeeper  at 
once  recalls  him. 

"How  are  you,  Mr.  Appleboy?  Come  right 
in,"  says  that  functionary  in  greeting. 

"How  do  you  do?"  responds  Appleboy.  "I 
have  come  to  get  my  teapot." 

"Ask  the  sergeant  about  it,"  directs  the  door- 
man. 

So  Appleboy  makes  his  way  to  the  desk,  where 
he  is  again  recognized,  this  time  by  the  sergeant 
on  duty. 

"Well,  Mr.  Appleboy,"  remarks  the  sergeant, 
"what  became  of  that  cook  of  yours?  She  was  a 
bad  one!  I  hope  they  convicted  her." 

"They  did  not,"  replies  Mr.  Appleboy;  "they 
didn't  even  get  a  chance  at  her.  She  got  away." 

"Jumped?"  inquires  the  sergeant  with  a  grin. 

"That's  what  she  did,"  acknowledges  Apple- 
boy,  "after  she  had  kept  me  chasing  up  and  down 
for  nearly  six  months." 

"Oh,  she  was  a  sly  one,"  answers  the  sergeant 
sympathetically.  "A  little  vacation  up  the  river 
would  have  done  her  good." 

"I  suppose  there's  no  objection  to  my  having 
the  teapot  back,  is  there?" 

169 


The  Prisoner  at  the  Bar 

"Sure  not,"  answers  the  sergeant.  "It's  yours, 
ain't  it?  Of  course  you  can  have  it  back." 

"Do  you  mind  letting  me  have  it  then?"  asks 
Appleboy. 

"Oh,  we  haven't  got  your  teapot!"  exclaims 
the  sergeant.  "That  was  handed  over  to  the 
property  clerk  at  Police  Headquarters.  I  sup- 
pose when  the  case  was  set  for  trial  the  pot  was 
sent  down  to  the  district  attorney's  office;  he's 
probably  got  it  locked  up  in  his  safe, — I  mean 
whatever  assistant  was  going  to  try  the  case." 

"Well,  well,"  says  Mr.  Appleboy;  "of  course, 
I  assumed  it  was  right  here,  where  I  saw  it  last. 
What  would  you  advise  me  to  do?" 

"Better  go  right  down  and  see  the  assistant 
district  attorney,"  says  the  sergeant.  "Skipped 
her  bail,  did  she?  Well,  that's  a  pretty  good 
one,  too !" 

Although  it  is  now  three  o'clock,  Mr.  Apple- 
boy  goes  to  the  nearest  elevated  station  and  takes 
the  train  down  town.  This  occupies  about  half 
an  hour.  He  gets  off  at  the  corner  of  Franklin 
Street  and  walks  to  the  Criminal  Courts  build- 
ing. He  is  now  thoroughly  familiar  with  this 
lugubrious  locality  and  finds  the  elevator  without 
difficulty,  ascending  amid  the  usual  odoriferous 
company  to  the  floor  upon  which  Mr.  Smith,  the 
assistant  district  attorney,  has  his  office.  Mr. 

170 


Red  Tape 

Smith's  door,  however,  is  locked,  and  inquiry 
from  a  deaf  attendant  in  a  neighboring  corridor 
elicits  the  fact  that  the  assistant  is  engaged  in 
trying  a  murder  case  in  Part  IV  of  the  General 
Sessions.  Appleboy  now  bethinks  him  of  Jones 
and  forthwith  descends  to  the  next  tier  of  offices, 
but  there  finds  to  his  chagrin  that  the  latter  also 
is  trying  a  case. 

Determined  not  to  be  thwarted  by  any  such 
trifling  matter,  our  hero  takes  the  elevator  to 
the  second  floor  of  the  building  upon  which  the 
court-rooms  are  located.  He  first  applies  at 
Part  I.  The  superannuated  attendant  at  the 
door  eyes  him  sharply,  asks  him  for  a  subpoena, 
and  upon  his  failure  to  produce  it  denies  him  ad- 
mittance. Appleboy,  naturally  indignant,  in- 
quires the  reason.  The  watchdog  at  the  door 
brusquely  replies  that  persons  having  no  business 
in  the  court-room  are  not  permitted  to  enter. 

"But  I  want  to  speak  to  Mr.  Jones." 

"Well,  he  can't  see  you  now,  anyhow,"  replies 
the  doorkeeper.  "It  won't  do  you  a  particle  o^ 
good  to  go  in;  he's  right  in  the  middle  of  sum- 
ming up  the  case  to  the  jury." 

This  seems  a  sufficient  excuse,  even  to  our 
much-annoyed  old  gentleman,  and  he  thereupon 
makes  his  way  to  the  court-room  in  which  he  has 
been  informed  that  Smith  is  disporting  himself. 

171 


The  Prisoner  at  the  Bar 

Here  he  makes  a  second  attempt  to  secure  admis- 
sion. On  this  occasion  there  is  not  even  the 
question  of  a  subpoena.  No  one  can  be  admitted, 
because  the  judge  is  "charging  the  jury."  The 
answer  is  definite  and  final. 

The  doorkeeper,  however,  is  a  good-natured, 
genial,  warm-hearted  Irishman,  and  notes  with 
some  sympathy  the  disappointment  and  chagrin 
of  the  weary  little  old  man.  Appleboy  observes 
the  benignity  of  the  other's  expression  and  ten- 
ders a  cigar, — not  what  is  commonly  known 
about  the  building  as  a  "cigar"  (six  for  a  quar- 
ter) or  even  a  "good  cigar"  (a  ten-center),  but 
a  bang-up,  A-i,  twenty-five  cent  Havana,  with  a 
gorgeous  coat  of  many  colors.  Being  very  tired 
he  lights  another  for  himself.  The  two  converse 
amicably. 

It  now  develops  that  the  doorkeeper  not  only 
remembers  Appleboy,  but  the  case  and  the  tea- 
pot, and  finally,  having  become  conversant  with 
the  entire  situation,  he  pronounces  judgment, 
namely,  that  Mr.  Appleboy  will  find  the  teapot 
at  the  property  clerk's  office  at  Police  Head- 
quarters; that  while  it  is  possible  that  it  might 
remain  in  the  custody  of  one  of  the  assistants,  or 
in  charge  of  the  property  clerk,  attached  to  the 
district  attorney's  office,  it  is  very  unlikely  that 
such  is  the  case,  since  the  defendant  was  never 

172 


Red  Tape 

placed  on  trial.  He  therefore  advises  Appleboy 
to  return  with  all  haste  to  300  Mulberry  Street 
and  secure  the  return  of  his  property  from  the 
person  there  having  it  in  charge.  Appleboy  is 
very  much  pleased;  he  begins  to  regard  himself 
as  quite  a  "mixer,"  while  for  a  brief  moment 
visions  of  running  for  mayor  or  perhaps  for 
alderman  hover  in  his  mind;  and  after  presenting 
the  doorkeeper  with  a  couple  more  Havanas  he 
makes  his  way  out  of  the  building  upon  the 
Centre  Street  side. 

Appleboy  supposes,  as  is  not  unnatural,  that 
Police  Headquarters  must  be  somewhere  in  the 
immediate  neighborhood  of  the  Criminal  Courts 
building.  A  laborer,  in  response  to  his  question, 
waves  his  hand  in  a  northerly  direction,  and 
Appleboy  sets  out,  traversing  what  seems  to  him 
to  be  an  interminable  distance.  Every  one  whom 
he  addresses  states  that  Headquarters  is  just  a 
block  or  two  farther  on.  Soon  he  finds  himself 
on  Mulberry  Street;  swarms  of  little  children 
congregate  upon  the  sidewalk  and  pass  comments 
upon  his  appearance;  Italian  ladies  in  faded 
negligee  look  down  upon  him  from  upper  win- 
dows; bunches  of  macaroni  in  a  half-solidified 
condition  stream  from  frame-works  erected  in 
the  areas,  and  Appleboy  shudders  as  he  thinks  of 
the  germs  wafted  down  the  side  streets  and  from 

173 


The  Prisoner  at  the  Bar 

the  open  windows  of  the  tenements  which  must,  as 
he  believes,  collect  and  form  a  thick  crust  upon 
the  surface  of  this  unattractive  variety  of  nutri- 
ment. From  time  to  time  he  crosses  the  street 
for  the  the  purpose  of  avoiding  a  fight  between 
small  boys  or  a  group  of  children  dancing  around 
an  organ;  occasionally  he  is  obliged  to  walk  in 
the  middle  of  the  street  itself.  After  twenty 
minutes  he  comes  in  sight  of  an  inhospitable- 
looking  structure,  which,  he  is  informed  by  the 
peanut  seller  upon  the  corner,  is  that  for  which 
he  seeks. 

"Polica  Headquarta  1"  chatters  the  Italian  and 
grins;  he  knows  well  enough  what  it  is,  and 
"many  there  be  that  go  in  thereat." 

Appleboy  crosses  the  street  and  ascends  the 
steps,  meeting  as  he  does  so  a  squad  of  policemen 
who  bang  open  the  door  and  come  marching  down 
in  pairs.  He  shrinks  to  one  side,  and  then  timidly 
makes  his  entry.  An  officer  in  the  hall  inquires 
his  business. 

"I  desire  to  see  the  property  clerk,"  says  Mr. 
Appleboy,  "and  to  secure  the  return  of  a  teapot 
which  was  stolen  from  me." 

"The  property  clerk's  office  closes  at  four 
o'clock,"  says  the  officer;  "you'll  have  to  come  to- 
morrow morning,  at  nine." 

Appleboy  is  disgusted;  he  has  spent  what  is 


Red  Tape 

practically  an  entire  afternoon  in  the  pursuit  of 
his  teapot  and  has  accomplished  nothing. 

"It's  outrageous,"  he  cries;  "the  idea  of  a  pub- 
lic office  closing  at  four  o'clock  in  the  afternoon! 
What  do  these  fellows  do,  I  would  like  to  know, 
to  earn  their  salary?  Nine  to  four, — pooh! 
Why,  it  isn't  half  a  day's  work." 

The  officer  has  turned  on  his  heel  and  walks 
slowly  away,  leaving  Mr.  Appleboy  fuming  by 
the  door.  The  corridor  is  musty  and  dark,  its 
stone  flagging  worn  by  the  tread  of  millions  of 
heavily  booted  feet.  Poor  old  Mr.  Appleboy  is 
very  tired;  the  dingy  windows,  the  gloomy  cor- 
ridor, the  unsympathetic  policeman,  the  noise 
and  smells  of  the  Italian  quarter,  the  weary  trip 
to  the  district  attorney's  office  and  to  the  station 
house  have  brought  him  almost  to  the  verge  of 
tears.  He  is  ashamed  to  go  home  and  tell  his 
wife  that  he  has  accomplished  nothing, — he  has 
not  even  seen  the  teapot.  Feeling  very  small  in- 
deed Appleboy  pushes  open  the  door  and  passes 
out  upon  Mulberry  Street.  No  one  notices  him; 
in  this  official  world  a  bank  president  is  but  a  unit 
among  the  countless  multitudes  of  the  public.  He 
stumbles  into  a  subway  train,  seeks  sanctuary  in 
his  club  and  takes  a  Turkish  bath. 

Let  us  pass  over  the  painful  scene  upon  the 
return  of  Appleboy  teapotless.  His  lady  is 


The  Prisoner  at  the  Bar 

Hardly  to  be  blamed  for  showing  irritation  over 
her  husband's  failure  to  recover  that  interesting 
relic  and  valuable  domestic  adjunct.  She  knows 
she  could  have  done  much  better  herself.  At  any 
rate  she  would  not  now  calmly  return  home  from 
the  court  with  the  humiliating  admission  that  the 
prisoner  had  escaped  and  that  the  teapot  had  dis- 
appeared. Things  are  very  unpleasant  that  eve- 
ning, and  no  suggestion  on  the  part  of  Appleboy 
that  they  go  to  the  theatre  or  the  opera  will  bring 
a  smile  over  the  features  of  his  irate  spouse. 

The  next  morning  Mr.  Appleboy  is  up  betimes. 
He  does  not  wait  for  his  wife  to  come  down  to 
breakfast,  but  pours  himself  a  cup  of  coffee  and 
snatches  a  roll  at  the  sideboard.  A  quarter  to 
nine  finds  him  at  Police  Headquarters.  In  the 
clear  morning  sunshine  the  building  does  not  look 
so  repellent,  and  he  trots  up  the  steps,  pushes 
open  the  door,  and,  avoiding  his  adversary  of  the 
afternoon  before,  saunters  nonchalantly  down 
the  corridor  until  he  sees  a  small  door  at  the  top 
of  a  couple  of  steps  bearing  the  legend,  "Prop- 
erty Clerk's  Office." 

The  property  clerk,  whoever  he  is,  is  already 
there.  Appleboy  finds  himself  in  a  small  room 
divided  by  a  wire  grating;  this  has  a  small  open- 
ing through  which  he  is  obliged  to  converse  with 
the  official  in  charge. 

176 


Red  Tape 

"I  have  come  to  get  a  teapot  which  was  stolen 
from  me,"  explains  Appleboy. 

"What  is  the  state  of  the  case?"  inquires  the 
property  clerk. 

'The  thief  has  forfeited  his,  I  mean  her,  bail," 
replies  our  hero. 

"What  was  her  name?" 

"Maria  Holohan." 

"When  did  she  steal  the  teapot?" 

"Last  June." 

"Where  did  you  last  see  the  teapot?"  asks  the 
clerk. 

"At  the  station  house,  with  a  tag  on  it,"  Apple- 
boy  replies. 

"Well,  what  makes  you  think  we  have  it?"  asks 
the  clerk. 

"Why,  the  policeman  down  at  the  court-room 
told  me  that  you  kept  all  the  property  which  was 
retained  as  evidence,"  answers  Appleboy. 

The  clerk  rapidly  turns  over  the  leaves  in  a 
large  book.  Evidently  he  finds  what  he  is  look- 
ing for  and,  nodding,  answers :  "Well,  here's  the 
record  of  the  case.  One  silver  teapot,  value  fifty. 
Officer  making  arrest,  Patrick  McGinnis.  Pris- 
oner's name,  Maria  Holohan.  Claimant's  name, 
Silas  Appleboy.  That's  you,  is  it?  Stolen  prop- 
erty, teapot.  Held  for  evidence,  yes.  There 
you  are,  and  you  say  now  she  skipped  her  bail?" 

177 


The  Prisoner  at  the  Bar 

"Certainly,"  answers  Appleboy. 

"And  you  want  the  teapot?" 

"Of  course  I  do,"  answers  Appleboy. 

"Well,  first  you  have  to  get  an  order  from  the 
court  to  that  effect,"  says  the  clerk. 

Appleboy  almost  loses  his  temper.  Has  he  got 
to  make  another  trip  down  to  that  miserable 
criminal  Courts  building? 

"Look  here,"  he  exclaims  rather  angrily, 
"what  is  the  sense  of  all  this  red  tape?  The  case 
is  over,  I  own  the  teapot, — why  don't  you  give 
it  to  me  and  be  done  with  it?" 

The  clerk  smiles, — a  trifle  condescendingly, 
thinks  Appleboy. 

"My  dear  sir,"  he  says,  "are  you  aware  that  I 
have  no  means  of  knowing  that  you  are  the  Silas 
Appleboy  who  owns  this  teapot,  except  your  own 
say  so?" 

"Isn't  that  enough?"  shouts  Appleboy. 

"It  ought  to  be,"  responds  the  clerk,  "but 
sometimes  it  isn't.  I  don't  even  know  that  the 
woman  has  skipped  her  bail." 

Appleboy  begins  to  see  the  force  of  the  clerk's 
argument. 

"I  never  imagined  that  a  gentleman  would  be 
tossed  about  from  pillar  to  post,  as  I  have  been 
since  I  lost  that  teapot.  What  is  it  you  say  I 
must  do;  get  an  order  from  the  mayor?" 


Red  Tape 

"No,  no, — the  judge,"  answers  the  clerk. 

uHow  shall  I  get  it?"  inquires  Appleboy  rather 
kuffily. 

"Oh,  ask  the  assistant  district  attorney;  he 
will  probably  get  it  for  you." 

'Thank  you,"  says  Appleboy  stiffly,  and 
marches  out.  This  time  he  takes  the  subway  to 
Canal  Street,  reaching  the  Criminal  Courts  build- 
ing a  few  moments  after  nine.  Much  to  his  sur- 
prise Mr.  Smith  is  already  down  at  his  office  hard 
at  work. 

uAh,  Mr.  Appleboy,  good-morning  to  you," 
he  exclaims. 

"How  are  you,  Mr.  Smith?"  responds  Apple- 
boy.  "I  have  come  after  that  confounded  tea- 
pot." 

"Oh,  the  one  your  cook  stole.  I  remember  it 
well.  Where  is  it?" 

"At  Police  Headquarters,"  responds  Apple- 
boy,  "and  they  want  me  to  get  an  order  from 
some  judge  or  something  before  they  will  give  it 
up  to  me." 

"That's  easily  managed,"  responds  the  assist- 
ant, "but  you  have  to  get  a  waiver  from  this  office 
of  any  claim  that  we  may  have  upon  the  teapot 
as  evidence.  There  is  a  regular  printed  blank. 
I  think,  inasmuch  as  Jones  was  actually  going  to 
try  the  case  when  Maria  skipped  her  bail,  that  he 

179 


The  Prisoner  at  the  Bar 

had  better  fill  it  out.    After  you  get  it,  come  back 
here  and  I'll  make  the  application  for  you." 

Appleboy  begins  to  feel  better.  Here  is  some 
one  that  knows  his  business.  He  lights  a  cigar 
and  descends  to  the  next  floor,  where  he  finds  his 
old  friend  Jones.  Jones  is  quite  ready  to  give 
the  desired  waiver,  and  selects  one  from  a  pigeon- 
hole in  his  desk.  He  fills  it  out  to  read  as  follows : 

New  York,  October  7,  1907. 

District  Attorney's  Office, 
County  of  New  York. 


For  Grand  Larceny 
in  the  Second  Degree 


The  People  of  the  State  of 
New  York  on  the  com- 
plaint of 

Silas  Appleboy 

against 
Maria  Holohan. 

This  office  has  no  further  use  for  the  property  taken 
from  the  defendant  in  this  case,  and  now  in  the  possession 
of  the  property  clerk  of  the  police  department.  No  objec- 
tion is  therefore  made  by  me  to  its  delivery  to  any  person 
who  proves  to  your  satisfaction  his  right  to  the  possession 
of  the  same, — one  silver  teapot. 

A.  BIRD, 
District  Attorney. 
Per  William  Jones,  D.  A.  D.  A. 

To  the  Property  Clerk  of  the  Police  Department,  Borough 
of  Manhattan,  City  of  New  York. 

"Now  we'll  go  down  and  see  if  the  judge  will 
give  us  an  order,"  says  Jones. 

"Why,  is  there  any  doubt  about  it?"  inquires 

1 80 


Red  Tape 


/ 


Appleboy,  fearful  that  perhaps  after  all  he  is 
going  to  lose  his  teapot. 

"It  all  depends  on  circumstances,"  answers 
Jones.  "Some  of  the  judges  are  perfectly  willing 
to  give  orders  while  others  are  not.  You  see, 
the  trouble  in  your  case  is  that  the  woman  has 
never  been  tried,  so  that  the  question  of  whether 
or  not  she  stole  your  teapot  has  really  not  been 
decided  at  all." 

"The  wicked  flee — !"  murmurs  Appleboy  in 
his  most  approved  Friday  evening  manner. 

They  take  the  elevator  down  to  the  second 
floor,  and  make  their  way  to  that  part  of  the  Ses- 
sions upon  whose  calendar  Maria's  case  appeared 
at  tke  time  she  forfeited  her  bail.  A  trial  is 
going  on,  and  a  pompous  little  lawyer  is  cross- 
examining  a  stout  lady  who  weeps  and  laughs 
hysterically  by  turns.  As  the  lawyer  pauses  for 
breath  Mr.  Jones  arises  and  addresses  the  court. 

"May  it  please  your  Honor,  in  the  case  of  the 
People  against  Maria  Holohan,  charged  with 
grand  larceny,  the  bail  in  which  was  forfeited 
before  your  Honor  about  a  week  ago,  I  desire  to 
apply  for  an  order  directing  the  property  clerk 
at  Police  Headquarters  to  turn  over  the  property, 
namely  a  silver  teapot,  to  the  complainant,  who 
is  here  in  court." 

181 


The  Prisoner  at  the  Bar 

t(But  the  case  has  never  been  tried,  you  say, 
Mr.  Jones,"  objects  his  Honor. 

"That  is  all  very  true/'  returns  the  assistant, 
"but  the  woman  has  run  away,  her  bail  has  been 
forfeited,  and  judgment  entered  and  satisfied." 

"Supposing,  however,  she  were  captured  and 
brought  back  and  tried,  how  do  I  know  but  that 
the  jury  might  acquit  her?  And  they  might  acquit 
her  on  the  specific  ground  that  the  teapot  be- 
longed to  her,  and  not  to  the  defendant.  I  should 
then  be  in  a  position  of  having  directed  its  return 
to  a  person  to  whom  it  did  not  belong." 

"Of  course  what  your  Honor  says  is  entirely 
correct,"  answers  Jones,  "but  it  is  unlikely  that 
we  shall  ever  hear  of  the  case  again." 

"I  don't  know  ^bout  that,"  answers  the  judge. 
"Your  office  might  become  suddenly  extremly  en- 
ergetic and  try  to  extradite  her." 

"Well,  it  seems  rather  hard  on  Mr.  Apple- 
boy,"  responds  Jones. 

"Of  course  it's  hard;  he  has  my  entire  sympa- 
thy," replies  the  judge;  "but  I  cannot  take  the 
responsibility  of  deciding  who  owns  property  in 
a  case  which  has  not  been  tried.  I  am  not  here 
for  that  purpose.  Let  him  take  the  proper  legal 
steps  to  secure  the  return  of  his  property  in  the 
civil  courts." 

Appleboy,  who  has  understood  very  little  of 
182 


Red  Tape 

this  colloquy,  but  who  supposes  that,  for  some 
entirely  insufficient  reason  apparently,  the  judge 
is  trying  to  block  his  efforts  to  secure  the  return 
of  his  property,  suddenly  jumps  to  his  feet  and 
shouts : — 

"Look  here,  your  Honor,  I  would  like  to  have 
a  word  about  this,  if  I  may!  That  teapot  of 
mine  was  stolen  last  June;  I  caught  my  cook  in 
the  very  act  of  selling  it  to  a  pawnbroker;  I  had 
her  arrested  on  the  spot;  she  admitted  her  crime, 
and  acknowledged  her  guilt  in  the  police  court. 
My  teapot  is  tagged  and  locked  up  in  a  room  at 
Police  Headquarters,  and  they  won't  give  it  to 
me  unless  your  Honor  will  grant  an  order  direct- 
ing them  to  do  so.  Kindly  tell  me  what  I  am 
to  do." 

The  crowd  in  the  court-room  titters  and  the 
court  attendant  raps  loudly  with  a  paper-weight 
on  the  oaken  railing  for  silence.  The  judge  re- 
gards Mr.  Appleboy  good-naturedly. 

"I  am  very  sorry  you  have  had  so  much 
trouble.  My  position  in  the  matter  simply  is  that 
I  cannot  personally  take  the  responsibility  of  de- 
ciding to  whom  this  property  belongs,  particularly 
when  no  jury  has  ever  passed  upon  the  guilt  or 
innocence  of  the  defendant.  I  shall  be  very  glad, 
however,  to  approve  any  certificate  which  the 
district  attorney  may  choose  to  give  you  stating 

183 


The  Prisoner  at  the  Bar 

tfiat  he  has  no  further  need  or  use  for  the  prop- 
erty." 

Appleboy  brightens. 

"Your  Honor,"  says  he,  "Mr.  Jones  has 
already  given  me  such  a  certificate,  and  I  shall  be 
much  obliged  to  you  if  you  will  approve  it." 

Jones  hands  it  to  the  judge,  who  writes  the 
word  "Approved"  upon  it,  then  returns  it  to  the 
assistant. 

"You  will  observe,"  says  his  Honor,  "that  all  I 
do  in  the  matter  is  to  approve  the  statement  of 
the  district  attorney  that  he  makes  no  objection 
to  the  delivery  of  the  property  to  any  person  who 
proves  to  the  satisfaction  of  the  property  clerk 
his  right  to  the  possession  of  the  same.  My  ap- 
proval really  does  not  amount  to  anything  at  all. 
I  cannot  grant  you  a  court  order.  I  am  aware 
that  several  of  my  associates  might  do  so  under 
exactly  similar  circumstances,  but  I  personally  do 
not  care  to  assume  any  such  responsibility.  Pro- 
ceed with  the  case  on  trial." 

Out  in  the  corridor  Appleboy  inquires  anxiously 
of  Jones  how  on  earth  he  is  going  to  prove  to  the 
satisfaction  of  the  property  clerk  his  right  to  the 
possession  of  the  teapot. 

"Oh,  you  won't  have  any  difficulty  at  all,"  says 
Jones;  "this  certificate  from  us,  with  the  judge's 

184 


Red  Tape 

*O.  K.'  on  it,  is  equivalent  to  a  court  order,  even 
if  it  is  not  one  technically." 

"I  don't  know,"  answers  Appleboy  doubtfully; 
"this  paper  seems  to  leave  it  up  to  me  to  persuade 
the  intelligence  of  the  property  clerk." 

"You  won't  have  any  trouble,"  laughs  the  as- 
sistant. "Good-by." 

Mr.  Appleboy  leaves  the  building  once  more, 
and  again  takes  the  subway  to  Police  Head- 
quarters. 

"Back  again?"  inquires  the  property  clerk 
pleasantly. 

"I  have  a  certificate  from  the  district  attorney, 
approved  by  the  judge  giving  you  permission  to 
return  the  teapot  to  me,"  says  Appleboy,  shoving 
the  paper  through  the  wicket. 

The  clerk  takes  it. 

"This  isn't  a  court  order,"  says  he.  "Still,  if 
the  woman  has  skipped  her  bail  and  the  judg- 
ment has  been  satisfied,  I  guess  we  can  take  a 
chance  and  let  you  have  your  teapot,  provided  of 
course  you  are  properly  identified.  You  see,  so 
far  as  we  know,  you  may  have  picked  this  certifi- 
cate up  on  the  street.  The  thing  for  you  to  do 
is  to  get  hold  of  the  officer  who  made  the  arrest, 
and  who  knows  all  about  the  case,  and  have  him 
identify  you." 

"How  shall  I  do  that?"  asks  Appleboy,  very 


The  Prisoner  at  the  Bar 

much  irritated.  "I  don't  know  where  he  is;  I 
can't  go  chasing  all  over  the  City  of  New  York 
after  police  officers;  I'm  sick  of  this  whole  busi- 
ness; you  know  perfectly  well  I  am  Silas  Apple- 
boy,  else  I  shouldn't  have  this  paper,  and  I 
shouldn't  be  around  here  trying  to  get  that  tea- 
pot." 

"Don't  be  too  sure  about  that,"  replies  the 
property  clerk.  "We  have  had  three  women 
here  at  the  same  time  claiming  the  same  pair  of 
diamond  earrings,  and  each  woman  looked  abso- 
lutely respectable.  One  of  them  came  in  a  car- 
riage with  a  footman.  We  found  out  afterwards 
that  the  earrings  didn't  belong  to  any  one  of 
them,  but  to  an  entirely  different  person." 

Appleboy  loses  all  patience.  Just  as  he  is 
about  to  place  his  hands  upon  the  teapot,  presto, 
it  vanishes.  Two  Italians  and  a  Chinaman, 
escorted  by  an  officer,  now  elbow  past  Appleboy, 
who  disconsolately  gives  them  place.  He  is  "up 
against  it"  again;  there  is  no  help  for  it;  rules 
are  rules  and  the  law  is  the  law.  How  now  to 
find  Patrick,  the  officer!  He  begins  to  wish  he 
had  been  nicer  to  Patrick; — if  he  had  been  a 
little  more  liberal  in  the  way  of  cigars  at  the  time 
the  teapot  was  stolen,  things  might  have  been 
very  much  easier  for  him  now.  He  utters  an 
imprecation  under  his  breath  against  all  police- 

186 


Red  Tape 

men  and  police  red  tape.  Grinding  his  teeth,  he 
goes  to  the  nearest  telephone  booth  and  asks  to 
be  connected  with  the  precinct  to  which  Patrick 
is  attached.  The  operator  refers  him  to  3100 
Spring,  namely,  Headquarters, — but  there  he  is 
informed  that  private  citizens  may  not  be  con- 
nected with  police  stations.  He  hangs  up  the 
receiver  with  something  almost  like  an  oath,  Poor 
Vestryman  Appleboy!  Let  us  not  be  too  hard 
upon  him. 

It  is  now  half-past  eleven  o'clock.  He  takes 
the  car  uptown  and  returns  to  the  station  house, 
but  the  sergeant  informs  him  that  Patrick  is  down 
in  the  Criminal  Courts  building  as  a  witness  in  a 
burglary  case.  This  is  the  last  straw.  Frenzied, 
he  rushes  from  the  station  house,  takes  another 
car  and  sits  tensely  until  once  more  he  is  at  the 
Criminal  Courts  building.  Fortunately  he  has 
had  the  forethought  to  inquire  of  the  sergeant  to 
which  of  the  four  parts  of  the  General  Sessions 
Patrick  has  been  subpoenaed,  and  he  now  finds 
that  it  is  the  same  court-room  at  the  door  of 
which  presides  his  friend  of  the  day  before.  The 
doorkeeper  greets  him  genially,  and  in  response 
to  Appleboy's  inquiries  replies,  shure,  that  he 
knows  Pat  McGinnis; — that  Pat  has  been  there 
all  the  morning,  but  has  just  shtepped  out  over  to 
Tom  Foley's  saloon.  Although  Appleboy  has  not 


The  Prisoner  at  the  Bar 

been  inside  the  portals  of  such  a  place  since  he 
was  nineteen  years  old,  he  frantically  inquires  its 
direction,  and,  fearful  lest  he  lose  the  object  of 
his  search,  dashes  across  the  street  to  the  corner 
bar-room. 

The  little  old  gentleman  with  the  shining  silk 
hat  sticks  his  head  timidly  through  the  door  and 
observes  Patrick  at  the  end  of  the  bar  crooking 
his  elbow  in  the  customary  manner.  He  draws 
an  inspiration  from  the  sight;  with  a  bland  smile 
he  steps  up  to  the  bar  himself,  slaps  the  officer 
familiarly  on  the  back  and,  pulling  off  his  gloves, 
remarks,  "Well,  Pat,  old  boy,  how  do  you  feel? 
Have  another  on  me !" 

Patrick  gazes  at  him  open-mouthed.  Can  this 
be  the  stiff,  little  old  bank  president  he  knew  six 
months  ago?  But  there  can  be  no  question  as  to 
Appleboy's  intention  when  he  hears  the  latter 
order  "two  rye  high-balls,  and  another-for-your- 
self"  of  the  astonished  barkkeeper.  Appleboy 
toasts  Patrick,  Patrick  toasts  Appleboy.  Patrick 
produces  cigars;  Appleboy  replaces  them  with 
others,  larger  and  thicker  than  any  seen  at 
Foley's. 

"By  the  way,"  says  Appleboy,  "step  up  to 
Police  Headquarters  with  me,  will  you,  Pat? 
Now  that  I  happen  to  be  down  this  way,  I  might 

188 


Red  Tape 

as  well  take  that  teapot  home  with  me,  don't  you 
know." 

"Shure,"  says  Pat;  "court's  adjourned  by  this 
time,  and  I  can  get  back  by  two  o'clock  all  right." 

The  best  of  friends,  they  go  up  in  the  subway 
together  to  Police  Headquarters.  With  a  bold 
front  and  fearless  eye  Appleboy  enters  the  office 
of  the  property  clerk,  produces  his  certificate 
from  the  district  attorney,  and  demands  his  tea- 
pot. 

"This  officer  will  identify  me,"  says  he. 

"Shure  I  indentify  him,"  announces  Pat. 

The  clerk  takes  the  certificate,  opens  the  record 
book  and,  with  a  rubber  stamp,  enters  up  on  the 
back  of  the  original  report  the  words ; 

"Identified  by  officer 

as  owner  of  the  property." 

"Write  your  name  there,"  says  he  to  Patrick, 
and  McGinnis  laboriously  scrawls  his  name  be- 
tween the  lines. 

The  clerk  now  disappears  into  an  ajdoining 
room,  presently  returning  with  an  object  about 
the  size  of  a  football,  wrapped  in  coarse  paper, 
tied  with  a  multitude  of  strings  and  bearing  a 
tag. 

"Here  you  are,  sir,"  says  he,  opening  the  door 
189 


The  Prisoner  at  the  Bar 

in  the  wire  grating  and  passing  the  football  to 
Appleboy,  whose  heart  beats  wildly. 

The  clerk  then  stamps  the  words  "Delivered 
on  identification  of  officer"  upon  his  record  book, 
closes  the  same  with  a  slam  and  turns  aside  to 
other  more  important  business.  How  simple  it 
all  is  when  you  once  know  how  to  do  it ! 

"Easy,  ain't  it?"  remarks  Pat. 

"Easy  as  rolling  off  a  log,"  answers  Appleboy 
with  a  grim  smile. 


190 


CHAPTER  IX 

THE  TRIAL  OF   FELONIES 

IT  is  a  fact,  which  may  at  first  appear  para- 
doxical, that  the  jury  in  the  ordinary  run  of 
criminal  cases  passes  upon  the  guilt  or  innocence 
of  very  few  professional  criminals.  A  moment's 
consideration  will  reveal  the  reason.  The  pro- 
fessional criminal  usually  has  a  "record"  and  he 
knows  full  well  that  in  view  of  his  past  history, 
if  there  be  any  sort  of  a  case  against  him,  his  own 
defence,  however  eloquent  or  ingenious,  will  go 
for  nothing.  An  affirmative  answer  to  the  sim- 
ple question,  "Have  you  ever  been  convicted?" 
is,  in  three  cases  out  of  five,  equivalent  to  a  plea 
of  guilty.  Now  it  is  an  understood  thing  that  any 
prisoner,  who  is  willing  to  admit  his  guilt  and 
save  the  county  the  expense  and  trouble  of  a  trial, 
shall  receive  some  consideration  in  return  there- 
for when  it  comes  time  to  impose  his  sentence, 
and  usually  he  expects  to  receive  in  addition  a 
guarantee  of  good  faith  from  the  assistant  dis- 
trict attorney  in  the  shape  of  the  latter's  accept- 
ance of  his  plea  to  a  lower  degree  of  the  same 

191 


The  Prisoner  at  the  Bar 

crime.  The  real  "gun"  is  apt  to  have  his  life 
pretty  well  mapped  out.  He  anticipates  serving 
about  so  much  time  "in  stir"  and  figures  on  beat- 
ing about  every  other  case  before  it  reaches  an 
actual  trial.  If  worst  comes  to  worst,  and  he 
finds  he  must  face  a  jury  of  his  peers,  he  dickers 
for  the  lowest  plea  he  can  get.  Whole  court 
terms  often  go  by  without  a  single  professional 
crook  being  actually  tried.  If  one  of  them  is 
"caught  with  the  goods"  he  generally  throws  up 
his  hands  and  stolidly  takes  his  medicine. 

The  ordinary  citizen  quite  naturally  gains 
his  impressions  of  the  administration  of  criminal 
justice  by  reading  accounts  of  sensational  trials. 
He  imagines  that  the  daily  life  of  the  prosecutor 
consists  in  demanding  the  conviction  of  hardened 
felons  with  sordid,  crime-tracked  features,  varied 
by  occasional  spectacular  "star  cases"  where 
counsel  for  the  defendant  and  the  prosecutor  vie 
with  one  another  in  stupendous  outbursts  of  ora- 
tory in  which  the  bird  of  liberty  screams  unre- 
strained and  Justice  frantically  waves  her  scales. 
He  supposes,  if  he  gives  the  matter  any  consid- 
eration at  all,  that  defendants  languish  away 
their  lives  in  the  Tombs  waiting  for  trials  which 
never  come,  and  that  influential  criminals  walk 
the  streets  while  the  indictments  against  them  lie 
accumulating  an  overcoat  of  dust  in  some  for- 

192 


The  Trial  of  Felonies 

gotten  pigeon-hole.  He  frankly  assumes  that 
the  jury  system  is  pretty  nearly  a  failure,  and 
knows  of  his  own  knowledge,  or  thinks  he  does, 
that  any  one  with  enough  money  can  either  avoid 
being  tried  for  crime  at  all  or,  if  by  any  mischance 
he  be  convicted,  can  easily  escape  punishment  or 
at  least  delay  it  indefinitely  by  technicalities  of 
procedure  and  appeals.  In  his  customary  dialect 
he  "has  no  use"  for  the  criminal  or  the  criminal 
courts,  and  his  only  dread  is  that  he  may  some 
time  be  drawn  as  a  juror  and  be  compelled  to 
serve  in  a  region  of  the  city  where  he  will  be  un- 
able to  find  a  satisfactory  place  to  get  his  lunch 
and  in  the  society  of  those  whose  companionship 
he  fancies  he  is  not  likely  to  enjoy. 

Let  us  assume  that  Mr.  Ordinary  Citizen  has 
been  so  unfortunate  as  to  receive  one  of  those 
pink  slips  which  call  upon  him  to  "all  business  or 
other  matters  lay  aside"  and  to  attend  at  Part  I 
of  the  General  Sessions  of  the  Peace  at  ten  o'clock 
on  the  first  Monday  of  the  month.  He  finds  him- 
self in  a  large  and  well-lighted  court-room,  at  one 
end  of  which,  on  a  dais,  sits  a  judge  more  or  less 
surrounded  by  various  persons  who  continually 
approach  and  engage  him  in  conversation.  At  a 
desk  in  front,  a  clerk  and  his  assistant  are  busy 
with  piles  of  documents,  which  "O.  C."  learns 
later  to  be  indictments,  and  with  big  ledgers  which 

193 


The  Prisoner  at  the  Bar 

are  is  fact  the  "Minutes  of  the  Sessions."  The 
room  is  crowded,  all  the  benches  being  filled  with 
a  varied,  but,  on  the  whole,  a  respectable-appear- 
ing assortment  of  humanity.  In  front  of  the 
judge  and  clerk,  wandering  around  inside  an  en- 
closure, at  one  side  of  which  stands  the  tem- 
porarily empty  jury-box,  are  several  young  men 
who  are  earnestly  engaged  in  talking  to  the  law- 
yers, complainants  and  policemen  who  throng  at 
the  bar. 

Suddenly  the  clerk  raises  his  voice  and  shouts, 
"Harken  to  the  call  of  the  calendar!''  An 
officer  pounds  on  a  railing  with  a  paper-weight, 
another  bellows,  "Finds  seats  there!  An'  quit 
talkin'  1"  and  the  judge,  gazing  at  a  long  sheet 
of  foolscap  in  his  hand,  remarks  inquiringly: 

"People  against  Murphy?" 

The  young  assistant  district  attorney  at  once 
answers : 

"People  are  ready." 

"If  your  Honor  please,"  nervously  exclaims  a 
stout  man  pushing  his  way  to  the  front,  "this  case 
has  never  been  on  the  calendar  before.  I  was 
only  retained  last  night  and  I  did  not  receive  any 
notice  that  it  was  to  be  tried  until  this  morning. 
I  ask  that  it  go  over  until  next  week." 

"What  do  you  say,  Mr.  District  Attorney?" 
asks  the  judge. 

194 


The  Trial  of  Felonies 

"Oh,  it's  a  very  simple  case/'  answers  the  as- 
sistant. "There's  no  reason  why  it  should  not  be 
tried  to-day." 

"Well,  I'll  give  you  until  to-morrow,"  says  the 
judge.  "You  must  be  ready  then." 

"People  against  Smith?"  he  continues. 

Both  sides  happen  to  be  ready  in  this  case. 

"People  against  McCord?" 

"Defendant's  going  to  plead,"  says  the  assist- 
ant. 

"People  against  Vermicelli?'* 

"We  expect  to  make  a  recommendation  in  that 
case,  your  Honor,"  announces  the  assistant, — 
and  so  it  goes  until  fifteen  or  twenty  cases  have 
been  marked  "Ready"  or  "Passed  for  the  day" 
or  adjourned  to  let  the  defendant  get  his  wit- 
nesses or,  in  point  of  fact,  for  the  lawyer  to  ex- 
tract his  fee. 

The  clerk  then  calls  the  roll  of  the  jury,  and 
after  the  rush  which  ensues  to  present  excuses 
to  the  effect  that  the  talesman's  health  or  business 
is  in  a  precarious  condition,  the  court  settles  grad- 
ually down  to  its  routine  work. 

A  jury  is  empanelled  and  a  lank,  seedy-looking 
youth  takes  his  seat  at  the  bar  between  a  spruce, 
bald-headed  little  man  and  a  court  officer.  He  is 
charged  with  having  "policy-slips  in  his  posses- 


sion." 


195 


The  Prisoner  at  the  Bar 

So  far  UO.  C.,"  our  juror,  has  been  impressed 
with  the  business-like  and  cheerful  manner  in 
which  the  proceedings  have  been  conducted. 
Most  of  the  lawyers,  instead  of  clamoring  for  a 
trial  for  their  languishing  clients,  have  exerted 
all  their  efforts  to  secure  delays.  Then  he  learns 
to  his  surprise  that  the  average  length  of  time 
which  elapses  between  a  defendant's  arrest  for 
felony  and  his  trial,  unless  the  prisoner  be  out  on 
bail,  is  less  than  one  week.* 

"Jury  satisfactory  to  both  sides  ?"  inquires  the 
clerk. 

*This  is  a  vast  improvement  over  the  conditions  which  existed 
in  this  regard  six  or  seven  years  ago,  when  defendants  in  prison 
could  count  themselves  fortunate  if  tried  within  three  weeks, 
or,  if  on  bail,  within  a  year.  It  was  by  no  means  unusual  to 
have  cases  appear  upon  the  calendars  from  three  to  five 
years  old,  the  backs  of  the  indictments  being  covered  with  names 
of  assistants  long  since  departed  from  official  life.  The  writer 
once  tried  a  case  that  had  appeared  on  the  calendar  TWENTY- 
EIGHT  times,  and  cases  which  had  appeared  there  from  ten  to 
twenty  times  were  the  rule,  not  the  exception.  In  the  days 
when  the  present  district  attorney  was  a  deputy,  indictments 
were  so  carelessly  found  and  treated  that  in  order  to  clear  the 
calendars  bushel  baskets  of  them  would  be  brought  into  court 
and  dismissed  "on  the  recommendation"  of  the  district  attorney. 
A  house-cleaning  process  of  this  sort  would  ordinarily  occur 
just  before  it  became  necessary  to  make  an  official  report  on 
the  number  of  cases  "disposed  of."  Today  there  are  very  few 
indictments  not  tried  within  the  year,  and  almost  any  defendant 
who  wants  one  can  get  a  speedy  trial,  such  delays  as  arise  be- 
ing generally  caused  by  the  defendant  himself.  Of  course  dur- 
ing the  summer  months  when  but  two  courts  are  open,  and  the 
judges  sit  from  only  ten-thirty  to  one  o'clock,  action  is  somewhat 
less  speedy,  and  as  homicide  cases  'usually  require  more  time  for 
trial  than  others,  and  are  tried  seriatim  in  order  of  age,  the  de- 
fendants may  have  to  wait  a  little  longer  than  in  cases  of  less 
gravity.  Even  in  such  cases  defendants  generally  have  to  be 
"forced  to  trial"  against  their  will. 

196 


The  Trial  of  Felonies 

"Entirely  so,"  reply  the  little  bald-headed  man 
and  the  prosecutor  together. 

Suddenly  the  lank  youth  leans  over  and  whis- 
pers to  the  lawyer,  who  after  a  moment's  conver- 
sation beckons  to  the  prosecutor.  There  is  a 
brief  consultation  and  the  assistant  tosses  the  in- 
dictment to  the  clerk  with  the  announcement: 

"He  pleads  guilty." 

The  defendant  gets  up  and  shuffles  to  the  bar, 
where  his  pedigree  is  taken  and  a  day  set  for  his 
sentence,  which,  in  the  event  of  his  never  having 
been  convicted  before,  will  probably  be  a  fine  of 
twenty-five  dollars  or  a  month  in  the  penitentiary. 

"Call  the  next  case,"  says  the  judge. 

"People  against  Thompson,"  shouts  the  clerk. 
"Bring  up  Thompson." 

The  door  in  the  back  of  the  room  opens  and 
"Thompson"  is  "brought  up."  He  is  a  good- 
looking  young  negro,  defended  by  a  member  of 
his  own  race.  The  jury  say  they  have  no  preju- 
dice against  negroes  and  are  sworn  without  leav- 
ing the  box.  The  charge  is  one  of  assault  in  the 
first  degree — that  is  to  say,  with  intent  to  kill. 
The  complainant  is  a  flashily  dressed  young  mu- 
latto woman,  who  asserts  that  the  defendant 
"done  crack  her  head  wif  an  ice-pitcher,"  and  pro- 
duces the  fragments  of  pitcher,  done  up  in  a  news- 
paper. She  admits  that  at  the  time  of  the  un- 

197 


The  Prisoner  at  the  Bar 

fortunate  occurrence  she  was  living  with  the 
defendant  as  his  wife.  There  are  no  other  wit- 
nesses for  the  People,  and  the  defendant  is  sworn 
without  more  ado.  He  explains  that  the  com- 
plainant accused  him  of  being  too  attentive  to  a 
"yaller  gal"  on  the  next  street  and  when  he  at- 
tempted to  go  out  of  the  house  she  attacked  him 
with  a  pen-knife.  In  confirmation  of  this  he  ex- 
hibits a  small  cicatrix  on  his  wrist.  After  hearing 
the  evidence  the  assistant  announces  to  the  judge 
that  the  case  ought  in  his  opinion  to  have  been 
disposed  of  in  the  police  court  and  that  the  inter- 
ests of  justice  will  be  subserved  if  his  Honor  will 
discharge  the  defendant  on  his  own  recognizance. 
This  the  judge  does  with  an  admonitory  lecture, 
and  the  defendant  and  the  complainant  go  away 
together.  "O.  C.,"  the  juror,  begins  to  conclude 
that  the  assistant  is  a  pretty  fair  sort  of  a  chap. 
Trial  follows  trial  with  great  rapidity.  Gradu- 
ally the  crowd  in  the  court-room  thins  out.  By 
one  o'clock  only  a  donzen  or  fifteen  witnesses  and 
spectators  remain,  and  by  half-past  three  the 
benches  are  practically  empty.  "O.  C."  has  heard 
a  dozen  different  complaining  witnesses  tell  the 
story  of  how  as  many  defendants  have  wronged 
them.  The  Bowery  merchant  whose  packing- 
cases  have  been  broken  into  has  followed  as  com- 
plainant the  man  who  has  been  robbed  in  a  saloon; 

198' 


The  Trial  of  Felonies 

the  "clothes-line  fight"  has  given  place  to  the 
story  of  the  actual  abduction  of  a  young  girl  by  a 
"cadet";  the  landlady  who  has  received  a  bad 
cheque  from  a  lodger  can  hardly  wait  to  recount 
the  history  of  her  misfortunes,  for  the  man  who 
has  lost  a  horse  and  wagon  through  a  drunken 
driver,  whom  he  charges  with  grand  larceny. 

Generally  the  "People's  case"  consists  of  the 
complainant's  version  of  what  has  occurred,  some- 
what corroborated  by  another  witness  or  two, 
and  the  officer  who  made  the  arrest.  Then  the 
lawyer  for  the  defendant  takes  his  client  by  the 
shoulder  and  with  a  gruff  uGo  'round  there,  young 
man,"  or,  if  he  be  playing  for  sympathy,  a  gentle 
"Please  take  the  stand,  William,"  starts  him  upon 
that  most  dangerous  of  all  adventures,  a  journey 
to  the  witness-chair  in  his  own  behalf.  In  two 
cases  out  of  three  the  defendant's  own  testimony, 
if  he  is  guilty,  is  what  convicts  him.  Both  sides 
"sum"  up  in  short,  disconnected  speeches,  and 
the  judge  delivers  a  brief  charge.  The  jury  file 
out  and  another  is  immediately  sworn.  As  the 
next  trial  begins  very  likely  the  door  from  the 
"pen"  will  open  and  the  proceedings  be  inter- 
rupted long  enough  to  allow  another  prisoner  to 
tramp  around  the  court-room,  take  his  stand  at 
the  bar,  and  plead  guilty. 

"John  Keenan,  alias  Foxy  Keenan,  alias  Gum- 
199 


The  Prisoner  at  the  Bar 

Shoe  Jack,  do  you  now  desire  to  withdraw  the 
plea  of  'Not  guilty*  heretofore  entered  by  you, 
and  to  now  plead  guilty  to  grand  larceny  in  the 
second  degree?" 

The  defendant  acknowledges  with  no  very 
amiable  expression  that  this  is  his  inclination,  and 
his  pedigree,  which  is  taken  by  the  clerk  forth- 
with, discloses  that  he  has  served  five  times  in 
State's  prison  and  twice  in  the  penitentiary.  "O. 
C."  looks  at  his  fellow  jurors  and  whistles  under 
his  breath.  That  was  the  real  thing  and  no  mis- 
take. Very  likely  the  jury  upon  which  he  is  now 
serving  will  convict,  it  having  thus  been  brought 
to  their  attention  by  a  concrete  illustration  that 
all  the  defendants  are  not  innocent  persons  un- 
justly accused  of  crime.  "Remanded,"  says  the 
clerk,  and  Gum-Shoe  Jack  tramps  back  to  the 
little  door  and  the  interrupted  trial  goes  on.  The 
stream  of  complainants,  witnesses  and  defendants 
is  as  varied  as  that  in  Balzac's  "Comedie  Hu- 
maine."  "O.  C."  begins  to  take  a  keen  interest 
and  now  and  then  to  put  a  question  himself.  He 
has  taken  the  opportunity  to  make  the  acquaint- 
ance of  the  assistant  district  attorney  at  the  noon 
hour  and  now  feels  that  he  is  really  a  part  of  the 
machinery  of  justice.* 

*The  writer's  colleague,  Mr.  Charles  Copper  Nott,  Jr.,  has  re- 
corded as  follows,  the  actual  proceedings  of  an  ordinary  court 
day: 

200 


The  Trial  of  Felonies 

Ordinarily  in  a  full  court  day  there  will  occur 
from  two  to  four  complete  trials,  while  an  equal 
number  of  pleas  may  be  taken.  Sometimes  a  hun- 
dred and  fifty  cases  will  be  got  rid  of  by  trial  or 
plea  in  a  single  term  in  one  part  of  the  General 
Sessions  alone.  On  the  other  hand,  if  the  cal- 
endar is  made  up  of  "old-bail  cases,"  indictments 
for  receiving  stolen  goods,  misappropriation,  and 
Italian  or  Chinese  homicides,  the  office  accounts 
itself  lucky  in  getting  rid  of  half  a  dozen  cases  in 
the  month.  Occasionally,  when  a  brisk,  business- 
like judge  is  sitting,  a  "homicide  calendar"  will 
be  disposed  of  at  the  rate  of  one  a  day,  but  this  is 
rare  and  can  occur  only  when  most  of  the  cases 
are  for  manslaughter  or  criminal  negligence. 

"Maria  Dzialozindky  takes  the  stand  and  swears  that  after 
a  brief  acquaintance  she  married  (as  she  supposed)  the  de- 
fendant before  a  rabbi  of  his  choosing;  a  man  in  charge  of 
an  officer  is  identified  by  her  as  the  rabbi;  he  is  brought  over 
from  the  penitentiary  on  Blackwell's  Island  where  he  is  serving 
a  sentence  for  larceny,  being  a  thief  and  not  a  rabbi;  Maria 
then  goes  on  to  relate  how  the  defendant  then  procured  from 
her  one  hundred  and  forty-nine  dollars,  an  disappeared,  leav- 
ing her  alone  in  the  Suffolk  Street  tenement  which  was  to  have 
been  their  connubial  bower  of  bliss;  it  further  appears  that  the 
defendant  had  a  wife  living  at  the  time  that  he  went  through 
the  ceremony  of  a  mock  marriage  with  Maria.  Defendant  takes 
the  stand,  modestly  admits  that  he  is  possessed  of  such  unusual 
attractions  that  Maria  persecuted  him  into  this  marriage;  that 
she  forced  the  one  hundred  and  forty-nine  dollars  upon  him, 
and  that  he  unfortunately  slumbered  in  a  saloon  and  it  was 
stolen  from  his  person.  The  jury  fail  to  give  credence  to  his 
tale,  and  promptly  convict  him.  The  next  defendant  is  smooth 
and  well  dressed,  a  hanger-on  in  the  region  known  as  the 
Tenderloin.  Testimony  is  given  that  he  and  another  did  take 
and  carry  away  and  sell  certain  typewriting  machines  from  an 
office  in  Thirty-fourth  Street.  Defendant  with  an  engaging 

2OI 


The  Prisoner  at  the  Bar 

When  trials  are  rapid  their  speed  always  re- 
dounds to  the  benefit,  not  of  the  People,  but  of 
the  defendant.  Such  a  performance  in  a  court 
of  justice  as  the  following,  recounted  by  Lord 
Brampton,  could  not  take  place  to-day.  It  is 
worth  reproduction  as  marking  the  progress  of 
criminal  procedure: 

The  first  thing  that  struck  me  in  the  after-dinner  trials 
was  the  extreme  rapidity  with  which  the  proceedings  were 
conducted.  As  judges  and  counsel  were  exhilarated,  the 
business  was  proportionately  accelerated.  But  of  all  the 
men  I  had  the  pleasure  of  meeting  on  these  occasions,  the 
one  who  gave  me  the  best  idea  of  rapidity  in  an  after- 
dinner  case  was  Muirhouse. 

Let  me  illustrate  it  by  a  trial  which  I  heard :  Jones  was 
the  name  of  the  prisoner.  His  offence  was  that  of  picking 
pockets,  entailing  of  course  a  punishment  corresponding  in 

smile  tells  how  his  companion  had  just  been  discharged  from 
the  office  in  question,  and  had  enlisted  his  (defendant's)  aid  to 
remove  the  machines,  which  he  informed  the  defendant  were 
his  own,  and  how  shocked  he  was  later  to  learn  that  this  wicked 
companion  had  no  right  or  title  to  them.  His  smile  is  so  en- 
gaging, and  his  look  so  respectable,  that  the  jury  acquit  him, 
and  are  somewhat  chagrined  when  the  judge,  in  discharging  him, 
states  that  in  the  court's  opinion  he  is  a  smooth  an  plausible  thief 
and  guilty  beyond  a  doubt — which  is  the  fact,  as  previous  to 
the  trial  he  had  offered  to  plead  guilty  to  a  lower  degree  of 
the  crime  charged.  Next  comes  a  stalwart  Irishman  who 
describes  with  much  feeling  how  the  defendant  (unfortunately 
a  much  smaller  man),  without  any  provocation  whatever,  vi- 
ciously assaulted  him  in  a  hallway  of  the  West  side  tenement- 
house  where  they  both  lived,  and  cut  him  in  various  vital  parts 
with  a  pocket  knife.  Defendant  (bandaged  to  no  less  a  degree 
than  complainant)  describes  how  he  had  "an  argument"  (a 
term  embracing  any  affray  ending  in  anything  short  of  murder 
in  the  first  degree)  with  complainant  and  his  brother  over  a 
game  of  cards,  whereupon  they  followed  him  to  the  hallway, 
threw  him  down  and  kicked  him,  and  then  struck  at  them  with 
a  large  key.  His  talk  sounding  reasonable  and  being  cor- 
roborated by  several  neighbors,  defendant  is  acquitted.  Lastly, 

202 


The  Trial  of  Felonies 

severity  with  the  barbarity  of  the  times.  It  was  not  a 
plea  of  "Guilty,"  when  perhaps  a  little  more  inquiry  might 
have  been  necessary;  it  was  a  case  in  which  the  prisoner 
solemnly  declared  he  was  "Not  Guilty,"  and  therefore  had 
a  right  to  be  tried. 

The  accused  having  "held  up  his  hand,"  and  the  jury 
having  solemnly  sworn  "to  hearken  to  the  evidence,"  etc., 
the  witness  for  the  prosecution  climbs  into  the  box,  which 
was  like  a  pulpit,  and  before  he  has  time  to  look  around 
and  see  where  the  voices  comes  from,  he  is  examined  by 
the  prosecuting  counsel. 

"I  think  you  were  walking  up  Ludgate  Hill  on  Thurs- 
day 25th  about  half-past  two  in  the  afternoon  and  suddenly 
felt  at  tug  at  your  pocket  and  missed  your  handkerchief, 
which  the  constable  now  produces.  Is  that  it?" 

"Yes,  sir." 

"I  suppose  you  have  nothing  to  ask  him?"  says  the 
judge.  "Next  witness." 

Constable  stands  up. 

"Were  you  following  the  prosecutor  on  the  occcasion 
when  he  was  robbed  on  Ludgate  Hill,  and  did  you  see  the 
prisoner  put  his  hand  into  the  prosecutor's  pocket  and  take 
the  handkerchief  out  of  it?" 


an  unsuspecting  passenger  and  an  alert  trolley-car  conductor  tell 
how  defendant,  a  shifty-looking  young  gentlemen,  while  sitting 
next  to  the  unsuspecting  passenger,  kept  with  one  hand  a  news- 
paper shoved  under  the  latter's  chin,  while  with  the  other  he 
abstracted  a  fine  diamond  scarf  pin  adorning  his  cravat.  When 
their  tale  is  completed,  the  defendant  and  his  counsel  put  their 
respective  heads  together,  and  counsel  then  announces  that  his 
client,  the  sole  support  of  a  widowed  mother,  did,  in  a  moment 
of  temptation  induced  by  filial  anxiety,  endeavor  to  acquire 
this  pin,  and  he  thereupon  desires  to  throw  himself  upon  the 
mercy  of  the  court  and  plead  guilty,  which  he  does.  It  appears, 
however  (of  course  to  counsel's  astonishment),  that  his  portrait 
has  for  several  years  ornamented  the  Rogues'  Gallery,  and  that 
his  record  as  a  son  is  not  all  that  it  might  be,  whereupon  he 
is  sentenced  upon  the  spot,  and  court  adjourns.  This  is  the  sum- 
mary of  the  actual  record  of  a  court  day  presenting  no  unusual 
features" — "In  the  District  Attorney's  Office,"  Atlantic  Monthly 
for  April,  1905. 

203 


The  Prisoner  at  the  Bar 

"Yes,  sir." 

Judge  to  the  prisoner:    "Nothing  to  say,  I  suppose?" 

Then  to  the  jury :  "Gentlemen,  I  suppose  you  have  no 
doubt?  I  have  none." 

Jury:  "Guilty,  my  lord,"  as  though  to  oblige  his  lord- 
ship. 

Judge  to  prisoner:  "Jones,  we  have  met  before — we 
shall  not  meet  again  for  some  time — seven  years'  transpor- 
tation. Next  case." 

Time :  two  minutes  and  fifty-three  seconds. 

But  to  return  to  our  juror.  What  strikes 
"O.  C.,"  who  has  now  become  entirely  disabused 
of  his  previous  idea  of  what  criminal  trials  are 
like,  is  the  fairness  with  which  those  trials  are 
conducted  in  the  General  Sessions  and  the  fact 
that  the  interests  of  the  accused  are  safeguarded 
in  every  possible  way.  Plenty  of  time  is  taken  to 
try  out  even  a  pickpocket  case  or  a  street-corner 
brawl.  The  judge  always  covers  the  law  fully 
and  accentuates  the  necessity  of  giving  every  rea- 
sonable doubt  to  the  defendant.  In  his  heart 
"O.  C."  begins  to  have  a  slight  feeling  that  the 
devil  is  getting  a  little  more  than  his  due.  He  has 
acquitted  so  many  of  the  persons  who  have  been 
tried  that  when  he  now  sees  a  head  he  is  not  at 
all  unwilling  to  hit  it.  He  is  fast  reaching  that 
state  of  mind  which  the  prosecutor  has  anticipated 
when  he  has  told  his  chief  that  in  a  few  days  he 
will  have  the  jury  "knocked  into  shape,"  in  other 
words,  he  no  longer  believes  every  hard-luck 

204 


The  Trial  of  Felonies 

story  that  he  hears,  he  knows  that  certain  crim- 
inal attorneys  are  capable  of  almost  any  kind  of 
misrepresentation,  he  realizes  that  practically 
every  defendant  has  already  had  a  pretty  exhaus- 
tive trial  in  the  police  court  before  indictment, 
he  is  quite  as  anxious  to  see  the  guilty  convicted 
as  he  is  to  see  the  innocent  acquitted,  and  he  has 
been  properly  disgusted  with  the  attitude  and 
actions  of  certain  of  his  colleagues  in  the  jury- 
room  whom  he  regards  quite  properly  as  an- 
archists or  idiots.  The  district  attorney  at  the 
end  of  a  week  has  found  out  who  some  of  these 
are.  They  have  been  "excused"  for  the  re- 
mainder of  the  term,  and  he  can  rely  pretty  safely 
on  the  others  rendering  a  fair  verdict  in  any  im- 
portant case  which  he  now  desires  to  move  before 
them. 

What  naturally  interests  "O.  C."  and  his  fel- 
low jurors  most  of  all  is  the  defendant's  own 
story  of  how  he  came  to  be  involved  in  the  trans- 
action out  of  which  the  charge  against  him  arises. 
For  the  first  few  days  he  very  probably  gives  such 
explanations  rather  more  credit  than  they  de- 
serve, for  he  is  sympathetically  inclined  to  believe 
that  the  prisoner  is  more  likely  to  be  the  victim  of 
circumstances  than  guilty  of  an  act  of  moral  turpi- 
tude. The  eager  attitude  of  some  of  the  com- 
plainants likewise  gives  him  an  excuse  for  believ- 

205 


The  Prisoner  at  the  Bar 

ing  them  to  be  actuated  by  more  than  a  mere  de- 
sire to  see  justice  done  and  to  have  the  truth  pre- 
vail. He  is  inclined  to  look  for  hidden  motives 
for  every  prosecution.  This  gradually  wears  off 
and  his  attention  becomes  centred  on  the  defend- 
ant himself.  Will  he  put  in  a  defence?  Will  he 
testify  in  his  own  behalf?  What  will  he  say? 
Little  by  little  "O.  C."  gets  to  inventing  defences 
to  fit  the  facts  established  against  the  prisoner  by 
the  people's  case.  Meantime  he  is  learning  a  lit- 
tle law.  That  "the  people  must  prove  the  de- 
fendant's guilt  beyond  every  reasonable  doubt," 
and  "that  no  unfavorable  inference  must  be 
drawn  as  against  the  defendant  from  his  failure 
to  testify  in  his  own  behalf."  "O.  C."  has  some 
difficulty  with  the  "reasonable  doubt."  Perhaps 
he  says  to  himself,  "I  am  a  reasonable  man, — 
hence  any  doubt  I  have  must  be  reasonable." 
However,  the  judge's  reiteration  that  not  every 
doubt  is  a  reasonable  one  and  that  the  words  do 
not  mean  "a  mere  guess  or  conjecture  that  the  de- 
fendant may,  after  all,  be  innocent,  but  a  sub- 
stantial doubt  arising  out  of  the  evidence  in  the 
case,  for  which  a  reason  can  be  given,"  and  of 
such  a  character  as  would  influence  him  in  the 
important  affairs  of  his  daily  life,  eventually 
clears  his  mind  on  this  somewhat  abstruse  psy- 
chological problem,  and  he  translates  "beyond 

206 


The  Trial  of  Felonies 

any  reasonable  doubt'5  into  the  more  lucid  and 
comprehensive  "moral  certainty"  of  ordinary 
existence.*  But  that  he  shall  not  permit  him- 
self to  be  prejudiced  against  a  defendant  by  the 
latter's  refusal  to  testify  is  a  much  more  diffi- 
cult matter.  He  knows  it  to  be  the  law,  and  he 
tries  hard  to  obey  it,  but  in  a  majority  of  cases  he 
cannot  escape  the  subconscious  deduction  that  if 
the  defendant  were  innocent  he  would  not  hesitate 
to  offer  an  explanation.  As  time  goes  on  and  he 
gains  in  experience  it  becomes  even  harder  to 
follow  the  instructions  of  the  judge  in  this  respect. 
He  discovers  that  the  district  attorney  cannot 
prove  the  prison  record  or  bad  character  of  the 
defendant  unless  the  latter  subjects  himself  to 
cross-examination  by  taking  the  witness-stand, 
and  hence  is  likely  to  suspect  that  any  defendant 
who  does  not  testify  is  an  ex-convict.  Three 
jurors  out  of  five  will  convict  any  man  who  is  un- 
willing to  offer  an  explanation  of  the  charge 
against  him.  How  they  reconcile  this  with  their 
oath  it  would  be  hard  to  understand,  if  they  were 
accustomed  to  obey  it  literally  in  other  respects. 
The  writer  has  heard  more  than  one  talesman 
say,  in  discussing  a  verdict,  "Of  course  we  couldn't 
take  it  against  him,  but  we  knew  he  was  guilty 
because  he  was  afraid  to  testify." 

*Cf.    "Reform  in  Criminal  Procedure,"  by  Everet  P.  Wheeler, 
4  Columbia  Law  Rev.  356. 


The  Prisoner  at  the  Bar 

As  the  reader  is  doubtless  aware,  under  the 
common  law  no  defendant  in  either  a  civil  suit  or 
criminal  prosecution  could  testify  in  his  own  be- 
half. He  was  regarded  as  a  party  in  interest 
whose  bias  must  necessarily  render  his  evidence 
of  questionable,  if  of  any,  value.  This  doctrine, 
along  with  many  others,  our  fathers  adopted  on 
their  severance  from  England,  and  it  continued  to 
be  the  law  in  New  York  for  a  long  time, — in  civil 
cases  until  1849,  and  in  criminal  until  1869. 
Then,  ostensibly  for  the  sake  of  the  defendant 
and  for  the  protection  of  the  innocent,  the  rule 
was  abolished.  That  the  change  from  the  com- 
mon law  was  not  generally  approved  either  by 
the  bench  or  bar  of  New  York  is  clear  from  the 
opinion  of  the  Court  of  Appeals  in  one  of  the 
earliest  cases  which  arose  under  the  new  prac- 
tice.* The  court  expressed  the  opinion  that  the 
change  would  redound  to  the  benefit  of  the  glib, 
quick-witted  and  hardened  criminal  who  could 
invent  a  plausible  defence,  and  result  in  the  con- 
fusion of  the  innocent  man  unjustly  accused  of 
crime  who  might  from  stupidity  or  timidity  in- 
volve himself  in  apparent  contradiction;  to  say 
nothing  of  the  fact  that  if  the  defendant  did  not 
take  the  stand  the  jury,  however  much  they  were 
instructed  to  the  contrary,  would  inevitably  draw 

*Ruloff  vs.  The  People,  45    N.  Y.   231. 
208 


The  Trial  of  Felonies 

an  unfavorable  conclusion  from  his  failure  to 
deny  his  guilt. 

Now  to  any  fair-minded  American  it;  must 
seem  almost  rudimentary  justice  that  the  accused 
should  have  a  chance  to  tell  his  own  story.  That 
in  itself  is  a  sufficient  reason  for  the  rule.  Just 
why,  theoretically,  if  a  defendant  does  not  see  fit 
to  give  an  explanation  and  subject  himself  to 
cross-examination,  the  jury  should  not  be  per- 
mitted to  draw  an  unfavorable  inference  is  not  so 
clear. 

Experience  has  demonstrated  that  an  innocent 
man  need  have  no  fear  about  taking  the  stand. 
Jurors  sympathize  with  a  defendant  who  is  sub- 
jected to  a  withering  fire  of  questions,  and  do  not 
expect  him  to  be  able  to  give  a  lucid  account  of 
himself  since  the  day  of  his  birth,  or  to  explain 
without  the  minutest  contradiction  every  detail  in 
the  evidence  against  him.  But  they  do  want  him 
to  deny  his  guilt  and  to  have  an  opportunity  to 
"size  him  up."  On  the  other  hand,  the  slightest 
word  of  explanation  may  suffice  to  change  the 
whole  complexion  of  a  case.*  In  the  old  days 
the  guiltiest  of  criminals  could,  almost  with  im- 

*Mr.  Nott  cites  the  following  case: 

"The  complainant,  A,  a  well-dressed  bartender,  testified  that 
he  had  known  the  defendant,  B,  for  some  time;  that  on  the 
night  in  question  B  came  to  A's  rooms,  and  shortly  after  B's 
departure,  A  found  that  his  watch  was  missing;  the  watch 
had  been  in  the  pocket  of  A's  vest,  which  A  had  left  hanging 

209 


The  Prisoner  at  the  Bar 

punity,  shield  himself  behind  his  lawyer's  eloquent 
assertion  that  his  client  had  a  "perfect  defence," 
but  that  the  law  uhad  sealed  his  lips."  To-day  in 
the  vast  majority  of  cases  the  prisoner  who  docs 
not  take  the  stand  is  doomed.  Out  of  three  hun- 
dred defendants  tried  by  the  writer's  associate, 
Mr.  C.  C.  Nott,  twenty-three  failed  to  take  the 
stand  in  cases  submitted  to  the  jury.  Of  theue 
twenty-one  were  convicted,  one  was  acquitted,  and 
as  to  one  the  jury  disagreed.  Had  these  men 
been  prevented  by  law  from  testifying  in  their 
own  behalf,  the  ratio  would  have  been  very  dif- 
ferent. 

Thus  a  rule  originally  intended  to  benefit  the 

on  a  chair,  and  A  had  stepped  out  of  the  room  for  ten  minutes, 
leaving  B  alone.  B  afterwards  admitted  to  A  that  he  had 
"hocked"  the  watch.  Of  course  this  testimony,  if  believed,  made 
a  good  case  against  B,  and  it  is  difficult  now  to  realize  how 
any  one  could  ever  have  believed  that  the  chance  of  explaining 
or  contradicting  it  could  be  more  dangerous  to  B  than  the  cer- 
tainty of  having  A's  testimony  go  to  the  jury  uncontradicted. 
B  took  the  stand  and  testified  that  he  was  getting  a  good  salary 
as  manager  of  an  "intelligence  office";  had  never  even  been 
arrested  before;  that  A  had  obtained  a  loan  of  fifteen  dollars 
from  him  and  had  left  the  watch  with  him  on  the  understanding 
that  B  was  to  pawn  it  for  fifteen  dollars  and  give  A  the  ticket; 
B  did  pawn  it  in  his  own  name  and  was  shortly  thereafter  ar- 
rested. This  case  is  a  fair  illustration  of  a  puzzling  class. 
On  the  one  hand,  no  motive  or  reason  was  shown  why  A  should 
cause  the  arrest  of  his  friend  on  a  false  charge  (unless  that  of 
getting  the  watch  back  from  the  pawnbroker  without  payment 
of  the  fifteen  dollars  on  the  ground  that  it  had  been  stolen,  is 
an  adequate  one).  Upon  the  other  hand,  B's  character  and 
position  in  life  seemed  to  make  it  unlikely  that  he  would  com- 
mit such  a  theft,  and  his  act  in  pawning  the  watch  under  his 
true  name  gave  color  to  his  story.  The  jury  acquitted,  and 
who  can  say  that  there  was  not  at  least  a  reasonable  doubt?" 

2IO 


The  Trial  of  Felonies 

innocent  defendant  by  permitting  him  to  offer  his 
explanation  of  the  charge  against  him  has  practi- 
cally resulted  in  compelling  all  defendants,  guilty 
or  innocent  alike,  to  testify.  It  goes  without  say- 
ing that  this  has  resulted  in  a  considerable  benefit 
to  the  community.  Its  only  disadvantage,  and 
this  is  probably  more  theoretical  than  practical, 
is  that  ex-convicts  on  trial  can  no  longer  success- 
fully conceal  their  pasts.  If  they  do  not  testify 
they  will  probably  pay  the  usual  penalty,  and  if 
they  do  testify  they  are  more  than  likely  to  be 
convicted  "on  their  records."  Clever  criminals 
often  seek  to  avoid  this  dilemma  by  declining  the 
services  of  counsel  and  conducting  their  own 
cases,  thus  rendering  it  impossible  for  themselves 
to  take  the  stand,  for  in  such  an  event  there  would 
be  no  lawyer  to  examine  them.  This  ruse  is  well 
calculated  to  deceive  the  ordinary  juryman. 

The  jury  are  also  far  less  inclined  to  draw  an 
unfavorable  inference  from  a  defendant's  failure 
to  testify  if,  on  the  conclusion  of  the  evidence  of 
the  prosecution,  he  merely  "rests  on  the  people's 
case"  and  puts  in  no  defence  at  all,  than  if  he  puts 
in  only  a  partial  defence.  They  readily  appre- 
ciate that  his  counsel  may  honestly  believe  that  as 
matter  of  law  no  case  has  been  made  out  against 
him,  and  they  bend  their  energies  to  the  determ- 
ination of  the  simple  and  unobstructed  issue  of 

211 


The  Prisoner  at  the  Bar 

whether  the  uncontradicted  evidence  of  the  prose- 
cution has  of  itself  established  the  guilt  of  the 
prisoner  beyond  a  reasonable  doubt.  If  he  puts 
in  a  defence  and  calls  witnesses  to  contradict  those 
of  the  people,  the  jury  are  apt  to  concentrate 
their  attention  upon  the  question  of  the  relative 
truthfulness  of  the  witnesses  on  either  side. 
Juries,  quite  naturally,  are  quick  to  infer  guilt 
from  any  attempt  at  deception  on  the  part  of  the 
defence,  and  habitually  visit  the  sins  of  his  wit- 
ness upon  the  prisoner.  Every  criminal  lawyer 
has  had  the  unpleasant  experience  of  seeing  his 
client  convicted  merely  because  the  jury  have 
caught  one  of  the  witnesses  for  the  defence  lying 
on  an  immaterial  point.  Whether  the  jury  hear 
one  or  both  sides  of  a  case,  they  inevitably  labor 
under  the  disadvantage  of  never  being  able  to 
pierce  the  screen  which  the  law  has  hung  between 
them  and  the  truth  in  every  case.  Many  a  jury 
is  struggling  manfully  with  the  question  of  the  de- 
fendant's guilt  or  innocence,  while  the  latter  sits 
in  the  pen  chewing  the  cud  of  narcotic  content- 
ment and  wondering  whether  the  yarn  he 
"framed"  for  them  will  be  believed.  He  has 
figured  out  what  he  is  likely  to  get,  knowing  that 
even  if  he  were  found  guilty  the  judge  would 
probably  not  "give"  him  "more  than  Elmira," 
and  has  resolved  to  "take  a  chance."  As  the 

212 


The  Trial  of  Felonies 

Elmira  sentence  is  indeterminate,  the  defendant 
has  nothing  to  gain  by  pleading.  Once  there,  he 
will  be  released  in  fourteen  months  if  his  conduct 
appears  to  warrant  it.  The  only  real  "chance'* 
that  he  takes,  is,  that  the  judge  may  send  him  to 
State's  prison,  but  he  usually  has  made  a  study  of 
the  judge's  character  and  past  performances. 
Similarly  he  may  have  offered  to  plead  to  a  lower 
degree  of  the  same  offence  and  his  offer  may  have 
been  refused,  yet  the  matter  is  confidential  and 
the  case  has  to  be  tried  by  the  district  attorney 
as  though  he  had  no  knowledge  of  the  defendant's 
guilt.  So  the  jury  retire  and  frequently  end  their 
deliberations  by  acquitting  the  defendant,  who 
leaves  the  court-room  triumphantly  to  the  great 
chagrin  of  the  prosecutor.  The  jury,  on  the 
other  hand,  are  filled  with  complacent  satisfac- 
tion at  having  restored  to  liberty  a  man  unjustly 
accused  of  crime.  But  these  trifling  considera- 
tions are  as  nothing  when  compared  with  the  limi- 
tations which  the  laws  of  evidence  and  procedure 
place  upon  the  presentation  of  what  is  ofttimes  a 
perfectly  plain  case.* 

*Mr.  Nott  gives  the  following  illustration  from  an  actual  trial: 
"Take  for  example,  a  certain  case  tried  in  the  Criminal  Branch 
of  the  Supreme  Court  in  the  January  term  of  1902.  The  jury 
saw  the  defendant,  a  stalwart,  open-faced  laboring  man  of  nearly 
sixty  years,  on  trial  for  murder  in  the  first  degree;  they  heard 
a  bartender  and  smooth-shaven,  bullet-headed  witness  describe 
how  the  defendant  in  the  saloon  became  involved  in  a  dispute 
with  the  deceased,  caused  by  the  defendant's  bad  taste  in  re- 

2I3 


The  Prisoner  at  the  Bar 

The  prosecutor  who  has  thoroughly  Investi- 
gated a  case  has  a  knowledge  of  its  real  merits 
which  can  never  be  brought  to  the  minds  of  the 
jury.  There  is  much  evidence,  not  technically 
admissible,  which  properly  should  be  considered 
by  him  in  determining  his  official  action,  and 
there  is  usually  an  equal  amount  of  evidence,  the 
competency  of  which  will  depend  on  the  course  of 
the  trial.  He  occupies  a  delicate  and  frequently 
a  very  difficult  position,  since  he  must  prosecute 
the  case  without  reference  to  facts  which  might 

minding  him  that  he  had  done  time  for  killing  his  own  father; 
and  they  heard  him  of  the  bullet-head  admit  on  cross-examin- 
ation that  a  scar  adorning  his  neck  had  been  inflicted  by  the 
deceased  some  two  years  before;  they  heard  the  two  witnesses 
describe  how  the  deceased  left,  breathing  threatenings  and 
slaughter,  and  how  a  few  minutes  later  the  defendant,  in  the 
room  back  of  the  saloon,  was  approaching  the  rear  door,  cutting 
a  plug  of  tobacco  with  his  knife,  which  he  had  providentially 
drawn  for  that  purpose,  when  the  deceased  leaped  upon  him 
from  the  door  and  tried  to  stab  him,  whereupon  a  fight  ensued, 
in  which  the  defendant  was  cut,  and  after  which  the  deceased 
left,  followed  a  few  minutes  later  by  the  defendant  and  the 
bullet-headed,  who  saw  naught  further  of  him.  To  mar  the 
symmetry  of  this  tale  of  self-defence  (proved  by  the  prosecution's 
own  case),  but  two  jarring  facts  appeared — first,  the  saloon 
proper  (not  the  rear  room)  was  found  soaked  in  blood,  and, 
second,  the  deceased  was  found  shortly  after  the  defendant's  de- 
parture at  three  A.M.  lying  on  the  sidewalk  in  plain  sight  of  the 
rear  door,  with  his  throat  cut  from  ear  to  ear.  No  evidence  was 
put  in  for  the  defence,  the  defendant  modestly  refrained  from 
taking  the  stand,  and  of  course  an  acquittal  was  inevitable. 

"From  behind  the  scenes,  however,  the  facts  assumed  a  dif- 
ferent aspect.  The  frank-faced  defendant  was  one  'Red,'  who 
had  served  time  for  robbery  and  other  offences;  the  bullet-head 
surmounted  shoulders  upon  which  rested  a  heavy  load  of  crime 
and  violence,  their  owner  having  served  the  State  several  times 
and  been  implicated  in  numerous  crimes,  including  murder ;  the 
bartender  would  have  considered  it  quite  as  safe,  and  far  more 
comfortable,  to  put  a  bullet  through  his  head  than  to  testify 

214 


The  Trial  of  Felonies 

conclusively  prove  the  defendant  guilty,  could 
they  be  introduced  in  evidence.  The  real  char- 
acter of  the  accused  can  almost  never  be  demon- 
strated, for  unless  he  takes  the  stand  in  his  own 
behalf  his  "record"  is  inadmissible,  and  even 
when  he  does  take  the  stand,  he  can  deny  with 
impunity  any  allegation  as  to  his  past  offences  and 
conduct,  since  the  law  does  not  permit  the  prose- 
cutor to  disprove  such  denials  unless  they  relate  to 
actual  convictions  for  crime.  Similarly  the  excel- 
lent character  of  the  complainant  and  his  wit- 
nesses may  not  be  shown,  unless  the  defendant 
himself  directly  attacks  it,  so  that  it  is  probable 
that  throughout  the  case  the  injured  party  and 
the  wrong-doer  appear  to  the  jury  to  be  of  equal 
credibility.  The  district  attorney  is  a  "quasi- 

against  this  choice  pair;  while  it  was  true  that  the  deceased  had 
killed  his  own  father,  the  act  was  performed  while  parent  and 
son  were  in  a  drunken  fight,  by  striking  the  old  man  on  the 
head  with  a  water  pitcher,  and  had  occasioned  great  mortifica- 
tion to  the  son  when  he  became  sober;  and  it  was  true  that  the 
defendant  and  the  bullet-headed  were  both  bitter  enemies  of 
the  deceased.  On  this  statement  of  facts,  there  is  little  doubt 
that  the  deceased  was  murdered  in  the  saloon  where  the  blood 
was  found,  and  his  body  thrown  out  on  the  sidewalk,  and  the 
story  arranged,  the  defendant  shouldering  the  quarrel  because 
he  had  received  a  cut  in  the  course  of  the  fight.  As  the  de- 
fendant did  not  take  the  stand,  his  record  and  character  could 
not  be  shown;  as  the  State  was  compelled  to  call  the  bartender 
and  the  other  witness  (they  being  the  sole  witnesses  to  the 
occurrence),  it  could  not  impeach  their  veracity  nor  attack  their 
character.  To  the  prosecuting  officer,  therefore,  was  presented 
the  choice  of  recommending  the  'turning  out'  of  a  desperate  crim- 
inal without  a  trial,  or  of  putting  in  what  facts  the  law  per- 
mitted to  be  shown,  and  leaving  the  jury  to  acquit,  while  mar- 
velling that  such  a  weak  case  should  be  presented  to  them." 

215 


The  Prisoner  at  the  Bar 

judicial"  officer,  who  must  be  at  one  and  the  same 
time  the  friend  and  right  arm  of  the  court  and 
the  advocate  of  the  public  right.  His  official  posi- 
tion gives  him  an  influence  with  the  jury  which 
honor  forbids  him  to  abuse,  and  demands  an  im- 
partial consideration  of  the  evidence  and  a  dig- 
nified method  of  conducting  the  case,  irrespective 
of  the  tactics  of  the  defence.  He  represents  not 
only  the  public,  but  the  defendant,  who  is  one  of 
the  public.  He  should  be  glad  to  welcome  at  any 
stage  of  the  proceedings  credible  evidence  tending 
to  establish  the  innocence  of  the  accused,  and  if 
it  convinces  him  that  the  defendant  is  not  guilty, 
he  should,  even  in  the  midst  of  a  trial,  arise  and 
move  that  the  jury  be  discharged  and  the  prisoner 
set  free.  But  this  is  by  no  means  inconsistent 
with  a  vigorous  insistence  upon  the  people's 
rights,  nor  does  it  require  that  the  prosecutor 
should  refrain  from  using  the  advocate's  custom- 
ary weapons  of  attack  and  defence.  While  he  is 
crossing-examining  the  witnesses  for  the  defence 
and  arguing  to  the  jury,  he  is  for  the  time  being 
the  lawyer  for  the  people,  and  the  appellate 
courts  have  said  that  it  would  be  manifestly  un- 
fair not  to  extend  to  him  in  summing  up  the  case 
an  equal  latitude  of  expression  and  scope  of  argu- 
ment with  counsel  for  the  defendant. 

It  is  the  consciousness  that  he  is  indeed  sore 
216 


The  Trial  of  Felonies 

let  and  hindered  in  really  laying  the  truth  before 
the  jury  that  makes  the  accusation  of  "unfairness" 
so  bitter  to  a  prosecutor,  and  it  is  the  cause  of 
whatever  "overzealousness"  it  is  often  popular 
to  ascribe  to  the  district  attorney's  office.  One 
would  think,  to  read  the  communications  in  the 
evening  papers  during  a  recent  trial,  that  the  com- 
munity had  no  privileges  at  all.  A  prosecutor 
frequently  reaches  that  conclusion  from  experi- 
ence. The  writer  is  not  aware  that  the  constitu- 
tional guarantees  which  protect  the  liberty  of 
the  individual  were  intended  to  deprive  the  public 
of  an  advocate.  In  the  nature  of  things,  if  jus- 
tice is  to  be  done,  the  People  should  be  entitled 
to  the  same  rights  as  the  individual.  If  we  are  to 
have  respect  for  law,  the  law  must  be  deserv- 
ing of  respect,  and  law  which  makes  rather  for 
the  acquittal  than  for  the  conviction  of  the  guilty 
is  not  of  that  sort. 

But  with  a  trained  panel  of  jurors,  at  the  end  of 
the  second  week  of  the  term,  the  chaff  having 
been  separated  from  the  wheat,  the  prosecution 
may  reasonably  expect  to  see  the  mill  of  justice 
grinding  smoothly  and  reasonably  fine,  the  jury 
at  home  in  the  court-room,  familiar  with  their 
duties,  and  appreciative  of  the  fact  that  all  the 
assistant  is  trying  to  accomplish  is  the  disposal  of 
as  many  cases  as  possible  consistent  with  fair 

217 


The  Prisoner  at  the  Bar 

trials  and  just  verdicts.  By  the  middle  of  the 
term  he  must  be  a  very  indifferent  sort  of  fellow 
if  he  has  not  made  friends  of  the  jury;  and  assum- 
ing that  he  has  done  his  work  disinterestedly  and 
in  a  business-like  fashion,  he  will  find  that  he  has 
now  the  good-will  and  respect  of  the  entire  panel, 
— a  regard  which  may  well  stand  him  in  good 
stead  later  on  in  his  career.  This  is  the  prose- 
cutor's reward, — to  try  cases  before  a  body  of 
men  who  know  that  he  is  anxious  to  do  the  right 
thing,  ready  to  welcome  any  evidence  that  really 
tends  to  establish  the  innocence  of  the  accused, 
but  insistent  that  no  guilty  man  shall  go  free  un- 
less his  act  is  first  stamped  as  wrong  by  a  con- 
scientious verdict  on  the  part  of  the  jury. 

Yet,  as  the  writer  has  already  stated,  when  the 
jury  disband  at  the  conclusion  of  the  term  with  the 
thanks  of  the  court,  they  have  seen  few  profes- 
sional criminals,  save  for  a  fleeting  glance  as  one 
or  two  are  led  to  the  bar  to  admit  their  guilt. 
One  exception  readily  suggests  itself, — namely, 
the  prosperous  swindler  who,  by  means  of  the 
"wire-tapping,"  "sick  engineer"  or  other  similar 
device,  has  parted  some  gullible  person  from  his 
savings.  Yet  these  gentry  always  save  plenty  of 
money  with  which  to  engage  able  counsel  and  are 
only  forced  to  trial  after  they  have  exhausted 
every  means  of  delay  known  to  the  law.  They 

218 


The  Trial  of  Felonies 

never  plead  guilty,  but  fight  until  the  last  gun  is 
fired,  believing  that  as  they  have  escaped  punish- 
ment in  the  past,  so  they  will  in  the  future.  Their 
records  rarely  make  it  possible  for  them  to  take 
the  stand  in  their  own  behalf,  and  if  the  case  goes 
to  the  jury  at  all  they  are  immediately  convicted. 
Almost  every  panel  has  the  opportunity  to  hear 
at  least  one  "sucker"  tell  his  story  and  to  render 
a  speedy  verdict  in  his  favor.  It  needs  little  ex- 
planation from  a  prosecutor  to  convince  the 
twelve  hard-working  tradesmen  before  him  that 
the  defendants  in  this  class  of  cases  are  the  "real" 
criminals, — systematic  enemies  of  society. 

The  great  bulk  of  cases,  that  is  to  say,  nearly 
seventy-five  per  cent,  are  disposed  of  by  plea  by 
direction  of  the  court,  or  "recommendation,"  that 
is  to  say,  on  the  written  application  of  the  district 
attorney  that  the  defendant's  bail  be  discharged. 
Hundreds  of  cases  are  thus  "turned  out"  every 
year,  and  for  the  most  part  represent  those  in- 
stances where  the  magistrate  and  grand  jury  have 
not  had  either  the  time  or  the  inclination  to  as- 
sume the  responsibility  of  discharging  the  defend- 
ants, preferring  to  put  the  question  "up"  to  the 
district  attorney  or  a  petit  jury.  These  recom- 
mendations are  made  on  numberless  grounds,  the 
principal  being  ( i )  that  it  is  clearly  apparent 
that  a  reasonable  doubt  exists  on  the  evidence;  in 

219 


The  Prisoner  at  the  Bar 


other  words,  that  as  a  matter  of  law  the  case 
should  not  be  submitted  to  a  jury;  (2)  that  the 
People's  witnesses  have  disappeared  or  left  the 
jurisdiction;  (3)  that  the  case  has  once  been 
tried  with  the  jury  standing  almost  unanimously 
for  acquittal;  (4)  that  owing  to  the  peculiar  cir- 
cumstances in  the  case  it  is  quite  unreasonable 
to  suppose  that  any  jury  would  convict, — such  as 
where  an  entirely  respectable  young  woman  being 
out  of  work  has,  in  a  fit  of  despair,  attempted  her 
own  life.*  Two  or  three  cases  are  disposed  of  in 
this  manner  in  each  part  of  the  Sessions  almost 
every  calendar  day  in  the  year. 

The  defendants  who  plead  guilty  are  profes- 
sional criminals,  ex-convicts,  and  prisoners  whose 

*The  number  of  these  cases  is  one  of  the  saddest  commen- 
taries upon  the  conditions  of  life  in  a  great  city.  Upon  thii 
charge  during  the  year  1905,  268  males  and  114  females,  a  total 
of  382  were  arrested.  Thirteen  males,  and  no  females  were  held 
for  trial  and  the  others  were  discharged. 

Comparison  with  Previous  Years 


YEAR 

NUMBER  ARRAIGNED 

NUMBER  HELD  FOR  TRIAL 

Males 

Females 

Total 

Males 

Females 

Total 

1896  .  . 

147 
228 

202 
257 

251 

244 
244 

374 
234 
268 
269 
258 

72 
130 
159 
140 
173 
143 
158 
156 
123 
114 
136 
135 

219 
358 
361 
397 

424 
387 
402 
530 
357 
382 
405 
393 

30 

% 

40 
40 
24 
23 
IS 
IS 
13 

20 

13 

6 

12 

IS 
13 

12 

3 

6 
4 

2 

I 

36 
54 
41 
53 
53 
•7 
29 
19 
IS 
13 
22 
14 

1897 

1898.  .. 

1899    . 

1900  

1901. 

1902  

1003 

1904  
1905  

1906 

Z9O7  

22O 


The  Trial  of  Felonies 

guilt  is  so  overwhelmingly  clear  that  they  have 
no  hope  of  getting  even  a  disagreement. 

Thus  most  of  the  cases  tried  are  neither  "dead 
open  and  shut,"  as  the  saying  is,  nor  exception- 
ally weak.  They  usually  present  some  question 
of  doubt, — usually  only  a  conjectural  one,  how- 
ever, or  at  least  admit  of  a  more  or  less  logical 
argument  for  an  acquittal  on  the  part  of  the  de- 
fence. 

In  trivial  cases  the  jury  are  inclined  to  take  the 
law  into  their  own  hands.  Boys  charged  with  at- 
tempting to  pick  pockets  or  burglarize  small 
stores,  with  assaulting  police  officers,  carrying 
concealed  weapons  such  as  knives  and  brass 
knuckles,  having  policy-slips  in  their  possession, 
rioting,  malicious  mischief,  etc.,  are  usually  ac- 
quitted. This  is  because  the  jury  think  that  they 
have  been  already  punished  enough  for  the 
character  of  offence  which  they  have  committed, 
— not  because  they  believe  them  innocent.  Cases 
where  the  charge  is  a  serious  one  and  which  are 
tried  before  trained  panels  on  a  substantial 
amount  of  evidence  usually  result  in  conviction. 
In  so-called  "important"  or  "star"  cases,  defend- 
ants are  rarely  acquitted.  If  the  reader  will  re- 
call the  sensational  first  trials  of  the  last  ten 
years  he  will  find  that  there  is  hardly  a  single  ac- 

221 


The  Prisoner  at  the  Bar 

quittal  among  them.*  It  is  the  petty  law-breaker 
who  profits  by  the  lawlessness  of  the  modern 
jury. 

The  fact  that  the  prosecutor  appears  every 
day  before  the  general  panel  of  jurors  in  the  Part 
to  which  he  is  assigned  throughout  the  term  and 
soon  gains  among  them  the  reputation  of  being 
fair,  and  that  he  on  his  side  knows  their  peculiari- 
ties and  idiosyncrasies  is  what  makes  the  jury  sys- 
tem in  criminal  cases  work  more  accurately  and 
accomplish  better  results  than  in  civil  trials,  where 
the  jury  usually  has  never  seen  either  counsel  be- 
fore and  probably  distrusts  both  of  them.  A 
prosecutor  who  knows  his  petit  jury,  its  faults, 
virtues  and  foibles,  can  move  an  important  case 
before  it,  even  though  it  be  composed  of  retail 
cigar  and  newspaper  dealers  and  small  tailors 
from  the  East  Side,  more  safely  and  with  a  better 
expectation  of  a  just  verdict  than  before  a  "spe- 
cial" panel  of  bankers  and  architects  with  whom 
he  is  unfamiliar.  The  ordinary  panel  at  its  daily 
task  during  the  last  two  weeks  of  every  term 
illustrates  the  jury  system  at  its  best.  Cases 


*Peo.  vs.  Molineux,  Peo.  vs.  Bissert,  Peo.  vs.  Glennon,  Peo.  vs. 
Mills,  Peo.  vs.  Patrick,  Peo.  vs.  Amraon,  Peo.  vs.  "Al"  Adams, 
Peo.  vs.  Hummel,  Peo.  vs.  Wickes,  Peo.  vs.  Wooten,  Peo.  vs. 
Rothschild,  Peo.  vs.  Kanter,  Peo.  vs.  Summerfield,  Peo.  vs.  Sam 
Parks,  Peo.  vs.  Weinseimer,  Peo.  vs.  Burnham,  Peo.  vs.  Gillette, 
Peo.  vs.  H.  Huffman  Browne. 

222 


The  Trial  of  Felonies 

moved  at  the  beginning  of  the  term  usually  result 
in  acquittals.  Occasionally  a  jury  will  open  a 
term  with  a  rather  unexpected  conviction,  but  it 
takes  three  or  four  days  before  they  realize  that 
a  reasonable  doubt  is  not  meant  to  include  "a 
mere  guess  or  conjecture  that  the  defendant  may, 
after  all,  be  innocent."  Wily  criminal  practi- 
tioners seek  if  possible  to  have  their  cases  put 
on  the  calendars  at  the  opening  of  a  term,  and  to 
secure  adjournments  at  the  end  of  the  term  in 
order  that  they  may  go  over  to  the  beginning  of 
the  next. 

Court  officers  often  win  fame  in  accordance 
with  their  ability  as  "plea  getters."  They  are 
anxious  that  the  particular  Part  to  which  they  are 
assigned  shall  make  as  good  a  showing  as  possible 
in  the  number  of  cases  disposed  of.  Accordingly 
each  morning  some  of  them  visit  the  pens  on  the 
floor  below  the  court-room  and  negotiate  with 
the  prisoners  for  pleas.  The  writer  suspects  that 
the  assistant  in  charge  of  the  Part  is  usually  de- 
picted as  a  fierce  and  relentless  prosecutor  and 
the  jury  as  a  hardened,  heartless  crew  who  would 
convict  their  own  mothers  on  the  slightest  pretext. 
The  joys  of  Elmira  as  contrasted  with  other 
places  of  confinement  are  alluringly  described  and 
a  somewhat  paradoxical  readiness  to  accept  any 

223 


The  Prisoner  at  the  Bar 

sort  of  plea,  in  view  of  his  bull-dog  character,  is 
attributed  to  the  assistant. 

The  writer  has  known  of  the  entire  population 
of  a  prison  pen  pleading  guilty  one  after  another 
under  the  persuasion  of  an  eloquent  bluecoat  as- 
sisted by  an  opportune  conviction.  Of  course  the 
prisoners  expect  to  be  treated  with  a  considerable 
degree  of  leniency,  and  if  one  of  their  comrades 
goes  up  to  plead  and  returns  with  the  story  that 
the  judge  is  "easy"  and  the  assistant  "all  right," 
and  a  sentence  to  Elmira,  the  others  are  apt  very 
quickly  to  follow  suit.  If,  however,  the  first  of 
the  batch  called  for  trial  does  not  come  back  at 
all  (having  been  acquitted),  the  remainder  will 
not  "plead"  under  any  circumstances.  The  same 
thing  is  true  if  the  first  prisoner  who  pleads  gets 
a  severe  sentence.  Prosecutors  anxious  to  dispose 
of  business  hope  for  light  sentences  at  the  begin- 
ning of  the  term. 

Most  of  the  homicide  cases  are  tried  in  the 
Criminal  Term  of  the  Supreme  Court,  and  a  great 
many  pleas  to  "manslaughter"  are  accepted  by 
the  judge  where  the  technical  charge  is  murder  in 
the  first  degree.  The  grand  jury  indict  for  mur- 
der in  almost  every  homicide  case  on  the  theory 
that  some  evidence  may  possibly  be  given  at  the 
trial  which  will  warrant  such  a  verdict.  A  very 

224 


The  Trial  of  Felonies 

large  proportion  of  these  defendants  plead  guilty 
to  manslaughter,  and  are  encouraged  in  all  legiti- 
mate ways  to  do  so.  About  two  years  ago,  in  the 
Supreme  Court,  the  first  defendant  called  to  the 
bar  concluded  that  discretion  was  the  better  part 
of  valor  and  pleaded  guilty.  The  judge,  who  had 
never  sat  in  Criminal  Term  before,  promptly 
gave  him  eighteen  years, — only  two  less  than  the 
maximum,  although  the  shooting  had  occurred 
during  a  quarrel  over  a  game  of  "craps."  Not  a 
single  other  prisoner  offered  a  plea  to  any  degree 
of  crime  during  the  remainder  of  the  term. 

A  great  deal  of  interest  is  felt  everywhere  in 
the  practical  results  of  the  jury  system,  and  par- 
ticularly in  the  proportion  of  convictions  to  ac- 
quittals. Figures  purporting  to  show  such  ratios 
should  be  scrutinized  with  great  care,  as  they 
usually  include  among  "verdicts  of  conviction" 
pleas  of  guilty  voluntarily  offered  by  the  defend- 
ant, and  similarly  include  among  "acquittals"  all 
cases  where  defendants  are  discharged  without 
trial  on  the  motion  of  the  prosecutor.  The  only 
figures  which  have  any  particular  bearing  on  the 
question  of  how  far  the  jury  system  is  efficacious 
are  those  drawn  from  the  results  of  actual  trials 
in  which  verdicts  have  been  rendered. 

The   following  table   shows   the   comparative 
225 


The  Prisoner  at  the  Bar 


number  of  convictions,  pleas,  acquittals,  etc.,  in 
New  York  County  during  the  last  eight  years: 


Year 

Convictions 

1 

>, 

T3  d 

Jgf 

Discharged 
on  Own 
Recognizance 

Bail  Discharged 

Indictment 
Dismissed 

$ 
s 

1 

Declared  Insane 

Sentenced  on 
Another 
Indictment 

|J 

4)  *O 

w 

Dismissed  by 
Grand  Jury  | 

Jg 

Discharged 
(Comp.) 

1 

1900 

424 

1,672 

733 

366 

185 

76 

74 

H 

60 

19 

1,093 

4 

I4T 

4.860 

1901 

551 

1,838 

688 

434 

192 

165 

"3 

8 

77 

36 

1,045 

4 

116 

5.267 

1902 

419 

2,009 

698 

35i 

457 

257 

97 

5 

67 

62 

863 

2 

73 

5,36o 

1903 

485 

I,9l8 

6i5 

321 

299 

92 

62 

12 

65 

40 

807 

7 

86 

4.809 

1904 

495 

1,971 

700 

363 

272 

50 

63 

8 

61 

37 

898 

20 

99 

5.039 

1905 

489 

2.0OI 

602 

352 

207 

57 

51 

8 

82 

38 

1.035 

s 

93 

5,020 

1906 

404 

2,079 

560 

428 

344 

99 

47 

ii 

137 

45 

980 

2 

69 

5,265 

1907 

582 

2,266 

656 

493 

202 

IOO 

45 

12 

179 

38 

1,529 

4 

131 

6,237 

Total 

3.909 

15,754 

5,252 

3,108 

2,158 

896 

552 

77 

730 

315 

8,250 

48 

808 

4L8S7 

During  1907  in  New  York  County  out  of  4,573 
indictments  62  per  cent  (including  pleas  of 
guilty)  resulted  in  convictions.  The  following 
table  shows  a  gradually  increasing  percentage  of 
such  convictions  for  the  past  eight  years: 


Year 

Number  of  Indict- 
ments Disposed  of 

Total  Convictions 

Ratio 

I  gOO 

3  620 

IQOI  

4,096 

2  389 

5839 

I9O2 

4  410 

2  428 

r  e()6 

IQO3  

3,909 

2,403 

6l44 

1904    . 

4,022 

2  466 

6111 

IQ05  

3,887 

2,49O 

.6405 

I9O6 

4,214 

2  543 

6035 

1907  

4,573 

2,848 

.6228 

During  this  eight-year  period  32,731  indict- 
ments were  finally  disposed  of  either  by  trial,  plea, 
direction  of  the  court  or  on  the  recommendation 

226 


The  Trial  of  Felonies 

of  the  district  attorney.    These  dispositions  bear 
the  following  ratios  to  each  other: 


Year 

Convic- 
tions by 
Verdict 

Pleas  of 
Guilty 

Acquittals 
by 
Verdict 

Acquittals 
Directed 

Dis- 
charges 

Minor 
Dispo- 
sitions 

1900  
1901 

.1171 
1345 

.4619 
4487 

.1013 
0840 

.1012 

0840 

.1707 
.1831 

.0478 
.0657 

1902  

.0950 

.4556 

.0792 

.0791 

.2324 

.0587 

1903 

1239 

4905 

0786 

.0785 

.1770 

.0515 

1904  

.1231 

.4901 

.0887 

.0853 

.1685 

.0443 

1905 

1258 

5148 

.0769 

.0779 

.1585 

.0461 

1906  

.1101 

•  4934 

.0584 

.0745 

.2067 

.0569 

1907 

.  1273 

4955 

.0577 

.0857 

.  1739 

.0599 

What  the  reader  is  naturally  most  curious  to 
discover  is  in  what  proportion  of  cases  (where 
they  had  any  say  in  the  matter  at  all)  the  jury  let 
the  defendant  go.  Roughly  speaking,  the  propor- 
tion of  convictions  to  acquittals  by  actual  verdict 
is  considerably  more  than  two  to  one, — the  ratio 
for  1907  being  as  69  is  to  31 : 


Year 

Number 
Convictions 
by  Verdict 

Number 
Acquittals 
by  Verdict 

Convictions 
Per  Cent 

Acquittals 
Per  Cent 

1900  

424 

367 

54 

46 

IOOI     .  . 

551 

344 

62 

38 

419 

349 

55 

45 

485 

307 

61 

39 

495 

357 

58 

42 

1905.  . 

489 

299 

62 

38 

1900.  . 

464 

246 

65 

35 

J9O7 

cgj 

264 

69 

31 

The  writer  desires  very  particularly  not  to 
be  understood  as  suggesting  that  because  the  dis- 
trict attorney  in  all  these  cases  thought  the  de- 
fendant guilty  or  even  knew  him  to  be  guilty,  the 
action  of  the  jury  was  necessarily  improper.  So 
far  as  his  opinion  may  be  worth  anything  he  be- 
lieves thoroughly  in  the  jury  system  in  criminal 

227 


The  Prisoner  at  the  Bar 

cases,  with  some  trifling  modifications.  In  a  vast 
proportion  of  the  cases  in  which  acquittals  re- 
sulted there  was  undoubtedly  room  for  an  honest 
difference  of  opinion  as  between  reasonable  men, 
— men  in  the  long  run  better  qualified  to  judge  of 
the  defendant's  guilt  on  the  evidence  than  the 
prosecutor  himself,  who  is  always  at  the  disad- 
vantage of  knowing  the  "inside"  or  "unprovable" 
elements  of  the  People's  case,  a  fact  which  is  apt 
to  lead  him  to  believe  that  the  record  establishes 
his  own  contention  more  than  it  appears  to  do  so 
to  the  jury.  The  propriety  of  any  jury's  action 
must  be  determined  only  upon  the  basis  of  the 
evidence  presented  to  them,  and  upon  which  they 
are  permitted  to  act.  The  writer  is  inclined  to 
believe  that  nearer  eighty  than  seventy  per  cent 
of  the  defendants  tried  should  be  convicted.  In 
the  heat  of  conflict  he  might  even  claim  ninety 
per  cent  and  maintain  that  if  a  majority  of  eleven 
on  each  jury  could  render  a  verdict,  nine  out  of 
every  ten  defendants,  after  a  hearing  in  the  mag- 
istrate's court,  an  examination  by  the  grand  jury, 
and  a  careful  investigation  by  the  prosecutor's 
office,  should  be  convicted.  The  writer  submits 
that  the  increasing  percentage  of  convictions 
shown  on  pages  224-225  is  evidence  of  the 
effectiveness  of  the  jury  in  criminal  cases  in  New 
York  County. 

228 


CHAPTER  X 

THE  JUDGE 

THE  two  principal  functions  of  the  judge  of 
a  criminal  court  are,  first,  to  preside  at  the 
trial,  declaring  the  law  and  seeing  to  it  that  the 
rules  of  procedure  and  of  evidence  are  properly 
observed,  and  second,  to  impose  sentence  in  case 
of  a  conviction.  In  the  first  case  he  is  a  judge  of 
the  law;  in  the  last  he  becomes  a  judge  of  the 
facts.  It  would  be  impossible  to  say  which  of 
these  duties  is  the  more  important,  but  the  latter 
is  certainly  vastly  the  more  difficult.  An  unjust 
sentence  is  as  bad,  if  not  worse,  than  an  unfair 
trial,  for  the  defendant  does  not  have  a  chance 
of  escape  and,  since  punishment  is  a  matter  of 
discretion  upon  the  part  of  the  judge,  it  cannot 
be  considered  or  reversed  on  appeal.  It  must  be 
of  precious  little  satisfaction  to  a  convicted  pris- 
oner to  know  that  he  has  had  a  perfectly  im- 
partial trial,  if  at  the  same  time  he  receives  a  sen- 
tence four  times  longer  than  he  deserves,  and 
equally  little  consolation  to  a  prosecutor  when, 
after  a  fair  contest,  he  has  convicted  a  political 

229 


The  Prisoner  at  the  Bar 

rascal  of  influence  if  the  judge  "suspend  sentence" 
and  the  defendant  is  permitted  to  walk  the  streets 
in  spite  of  his  offences. 

The  amount  of  learning  requisite  to  preside 
with  efficiency  at  an  ordinary  criminal  trial  is  com- 
paratively small,  and  provided  the  judge  be  hon- 
est, impartial,  possessed  of  common-sense  and 
what  is  known  as  "backbone,"  neither  prosecutor 
nor  defendant's  counsel  need,  as  a  rule,  com- 
plain, but  the  trouble,  time,  courage  and  discrimi- 
nation necessary  adequately  to  determine  what 
punishment  should  be  meted  out  to  a  particular 
offender  for  a  given  offence  cannot  well  be  over- 
estimated. It  is  not  a  difficult  matter  to  preside 
with  dignity  at  a  trial,  preserve  order,  exclude 
hearsay  testimony,  apply  the  other  simple  rules 
of  evidence  that  are  ordinarily  involved  in  a 
case  of  assault,  larceny,  burglary  or  homicide,  and 
instruct  a  jury  as  to  "reasonable  doubt,"  "good 
reputation"  and  the  "presumption  of  innocence" 
in  words  of  one  syllable.  We  may  fairly  assume 
that  it  is  no  harder  for  the  ordinary  judge  to  try 
a  man  for  picking  a  pocket  than  it  is  to  dress  him- 
self in  the  morning.  It  must  in  time  become 
automatic  if  not  almost  sub-conscious.  He  could 
probably  do  it  in  his  sleep.  Most  petty  criminal 
cases  "try  themselves."  The  trouble  begins  when 
the  same  judge  is  compelled  to  decide  whether  the 

230 


The  Judge 

convict  shall  be  sent  to  the  Elmira  Reformatory 
(where  he  may  reasonably  expect  to  be  discharged 
in  fourteen  months)  or  to  State's  prison  for 
twenty  years. 

Let  us  consider  first  the  conduct  of  the  judge 
during  the  trial  itself.  Theoretically  it  is  his 
duty,  at  least  in  most  States  of  the  Union,  simply 
to  declare  the  law  governing  the  case  and  to  rule 
impartially  upon  the  questions  of  evidence  pre- 
sented. He  is  supposed  to  give  no  hint  of  his 
own  opinion  as  to  whether  or  not  the  defendant 
should  be  convicted  and  to  refrain  from  any  mar- 
shalling of  the  facts  claimed  to  have  been  proven 
by  either  side  in  such  a  way  as  to  influence  the 
verdict  of  the  jury.  In  England  he  may  and 
generally  does  "sum  up"  the  case;  in  America 
such  a  course  would  usually  be  a  ground  for  re- 
versal, his  function  being  limited  to  an  abstract 
discussion  of  the  law  involved,  with  little  ref- 
erence to  the  facts  save  in  so  far  as  it  may  be 
necessary  for  purposes  of  illustrating  the  way  in 
which  the  jury  shall  apply  it.  He  is  supposed  to 
sit  upon  his  dais  serenely  indifferent  as  to  whether 
a  murderer  be  convicted  or  acquitted,  whether 
an  inexperienced  assistant  district  attorney  be 
"trounced"  by  an  astute  criminal  lawyer  with  a 
couple  of  generations  of  trial  experience,  or,  on 
the  other  hand,  a  bulldozing  prosecutor  bedevil 

231 


The  Prisoner  at  the  Bar 

a  miserable  prisoner,  defended  by  an  ignorant  and 
untutored  counsel,  into  the  State's  prison, — pro- 
vided either  be  done  within  the  strict  rules  of  evi- 
dence and  proper  court  behavior. 

This  may  be  all  very  well  in  theory, — but  it  is 
very  far  from  what  is  either  followed  in  practice 
or,  to  speak  frankly,  desirable.  What  the  people 
want  in  our  criminal  courts  is,  of  course,  a  "fair 
trial,"  but  they  want  a  "fair  trial"  that  results 
in  the  acquittal  of  the  innocent  and  the  conviction 
of  the  guilty, — so  long  as  he  is  convicted  by  what 
they  deem  fair  means.  The  people  do  not  expect 
a  judge  to  be  more  than  human.  Did  he  appear 
as  indifferent  to  results  as  theory  might  seem  to 
require  the  jury  would  quickly  infer  that  the  case 
was  of  slight  importance  and  their  action  a  mat- 
ter of  utter  indifference  to  the  court.  Juries  need 
to  be  kept  in  order  and  made  to  behave  them- 
selves, and,  if  judges  did  not  from  time  to  time 
exert  a  disciplinary  influence,  would  easily  run 
wild  and  become  hopelessly  demoralized.  It  is 
almost  impossible  to  overestimate  the  awe  with 
which  the  ordinary  juryman  regards  the  judge 
presiding  at  a  criminal  trial.  He  may  have  a  su- 
preme contempt  for  his  personality  or  private 
conduct,  but  once  let  the  judicial  ermine  enshroud 
the  individual  and  he  sees  only  the  judge, — the 
personification  of  the  law,  the  autocrat  of  the 

232 


The  Judge 

court-room,  the  "boss"  of  the  particular  "job" 
upon  which  he  is  temporarily  employed.  He 
knows  nothing  of  the  abstract  theory  of  the  situa- 
tion. He  wants  to  do  well  as  a  juryman  and  be- 
lieves, quite  naturally,  that  an  improper  verdict 
will  be  visited  by  the  judicial  wrath  and  a  just 
one  be  acknowledged  by  a  look  of  benignant  com- 
mendation. If  he  thought  the  judge  did  not  care 
he  would  take  little  interest  in  the  business  him- 
self, and  the  apprehension  of  the  court's  approval 
or  disapproval  is  an  ever-present  factor  in  keep- 
ing him  doing  conscientious  work, — quite  as  im- 
portant in  its  results  as  his  own  lightly  murmured 
oath  as  a  juror. 

The  judge,  in  addition  to  his  theoretic  duties, 
is  in  effect  the  individual  who  must  keep  the  gang 
at  work  and  see  that  every  one  of  them  earns  his 
two  dollars  a  day.  If  he  appeared  to  them  to  be 
star-gazing  or  studying  Epictetus  they  would  soon 
rest  on  their  shovels.  Many  juries  take  their 
cue  from  the  court,  laughing  when  he  laughs,  and 
frowning  when  he  frowns,  and  instinctively,  how- 
ever much  he  may  admonish  them  to  the  contrary, 
trying  to  determine  from  his  manner  and  charge 
what  his  own  impression  of  the  case  may  be. 

Now,  a  judge  who  has  sat  for  ten  or  fifteen 
years  on  the  criminal  bench  is  usually  keener  to 
detect  a  liar  or  see  through  a  "faked"  defence 

233 


The  Prisoner  at  the  Bar 

than  any  twelve  men  drawn  indiscriminately  from 
different  walks  of  business  activity.  A  timely 
question  from  him  may  demolish  a  perjured  ex- 
planation which,  but  for  his  interference,  would 
have  acquitted  a  guilty  criminal.  Theoretically 
it  is  none  of  his  business.  Practically  it  is.  An 
inexperienced  prosecutor  may  be  so  inadequate 
to  the  task  of  coping  with  some  old  war-horse  of 
a  lawyer  that  save  for  the  assistance  of  the  court 
a  rascal  would  be  turned  loose  upon  the  com- 
munity; or,  turn  about,  a  stupid  lawyer  may  con- 
vict his  own  client  if  not  prevented  by  a  consid- 
erate presiding  justice.  Theoretically  the  judge 
must  let  the  parties  fight  it  out  by  themselves.  In 
point  of  fact  it  is  his  business  to  even  things  up. 
The  old  country  judge  was  not  so  far  wrong  when 
on  being  assigned  to  the  criminal  term  of  the  Su- 
preme Court  in  New  York  City  he  said  to  the 
prosecutor : 

"Mr.  District  Attorney,  I  reckon  that,  between 
us,  we  shall  let  no  innocent  man  be  convicted, — 
and  no  guilty  man  escape." 

Practically  this  expresses  in  a  nutshell  the 
popular  idea  of  what  a  criminal  judge  is  for,  and 
it  is  certainly  the  idea  which  pervades  the  minds 
of  the  jury.  Nothing  can  eradicate  it.  It  is  a 
fact, — an  existing  condition,  which  the  court  must 
inevitably  take  into  consideration  in  determining 

234 


The  Judge 

his  course  of  conduct  upon  the  bench.  By  this  it 
is  not  meant  that  a  judge  should  be  either  counsel 
for  the  defendant  or  district  attorney,  nor  that  he 
should  force  his  ideas  upon  the  jury,  but  simply 
that  to  be  effective  he  must  be  more  than  a  non- 
entity, a  mere  law  book,  or  an  ornament,  must 
guide  the  course  of  the  trial,  and,  in  default  of  its 
being  done  by  the  counsel  on  either  side,  test  by 
his  questions  the  truth  or  falsity  of  the  testimony. 
More  than  this,  he  should  in  his  charge  indicate 
the  tests  which  the  jury  should  apply  to  the  vari- 
ous phases  of  the  evidence  and,  while  not  influ- 
encing them  upon  the  questions  of  fact  which 
they  are  to  determine,  should  nevertheless  so 
elucidate  their  task  that  they  may  be  guided  in 
their  deliberations  and  not  go  astray  among  the 
tangled  underbrush  of  an  adroit  counsellor's 
"requests  to  charge." 

The  writer  has  endeavored  in  the  preceding 
paragraphs  to  set  forth  briefly  the  theoretical 
function  of  the  judge  as  opposed  to  his  proper 
practical  function  if  he  is  to  be  of  any  value  in 
the  actual  administration  of  criminal  justice.  One 
more  step  is  necessary,  namely,  to  comment  on 
the  actual  conduct  of  some  judges  who  from 
natural  disposition  or  a  conscientious  purpose  to 
"do  justice"  are  inclined  to  usurp  the  function  of 

235 


The  Prisoner  at  the  Bar 

the  jury  and  practically  to  direct  either  an  ac- 
quittal or  a  conviction. 

Under  our  prevailing  doctrines  the  court  has 
no  right  to  influence  the  jury  on  the  facts  in  the 
slightest  degree,  and  indeed  most  judges  expressly 
direct  the  jury  to  disregard  absolutely  any  idea 
they  may  have  obtained  of  what  the  court's  opin- 
ion may  be.  This,  in  the  face  of  the  balance  of 
the  charge,  must  often  seem  paradoxical  to  the 
talesman,  for  few  judges  entirely  succeed  in  con- 
cealing their  own  views  of  the  case,  however 
hard  they  may  honestly  try  to  do  so. 

It  is  quite  as  foreign  to  the  spirit  of  our  in- 
stitutions for  a  judge  to  interfere  with  the  jury 
on  questions  of  fact  as  for  a  jury  to  arrogate  to 
itself  the  decision  of  points  of  law.  The  system 
is  designed  to  do  "justice"  by  means  of  its  several 
parts  working  harmoniously  together,  but  neither 
part  "working  justice"  by  itself.  If  the  judge 
arrogate  the  jury's  function,  the  jury  becomes 
superfluous.  This  is  not  the  intent  of  the  Consti- 
tution. There  is  no  real  trial  by  jury  when  the 
judge  decides  the  whole  matter,  and  it  would  be 
far  more  dangerous  for  a  single  man  to  act  as 
arbiter  of  the  defendant's  fate  than  for  twelve. 
Yet  more  or  less  consciously  there  is  often  a  ten- 
dency upon  the  part  of  the  criminal  bench  to  lend 
itself  to  the  success  of  one  party  or  the  other, 

236 


The  Judge 

however  positively  it  may  declare  and  direct  to 
the  contrary.  The  actual  amount  of  suggestion 
needed  to  give  the  jury  an  effective  hint  is  in- 
finitesimal. The  almost  imperceptible  accentua- 
tion of  a  word,  the  slightest  lifting  of  an  eye- 
brow, and  a  verdict  has  been  determined — by 
the  judge. 

Now  a  printed  record  on  appeal  fails  utterly  to 
disclose  the  tone  of  the  voice  or  the  stage  effects 
of  a  judge's  charge.  A  distinguished  member  of 
the  bench,  now  long  since  deceased,  was  accus- 
tomed to  deliver  charges  so  drastic  that  a  defend- 
ant charged  with  a  serious  offence  rarely,  if  ever, 
escaped.  Upon  appeal  absolutely  no  exception 
could  be  taken  to  his  remarks,  yet  nothing  more 
unfair  could  be  conceived  of.  The  record  would 
show  that  the  judge  had  charged: 

"If  you  believe  the  defendant's  testimony  you 
will  of  course  acquit  him.  He  is  presumed  to  be 
innocent  until  the  contrary  is  proved.  If  you  have 
any  reasonable  doubt  as  to  his  guilt  you  must  give 
him  the  benefit  of  it.  On  the  other  hand,  if  you 
accept  the  testimony  offered  by  the  People  you 
may  and  will  convict  him." 

Now,  nothing  on  its  face  would  seem  to  be 
fairer.  What  the  jury  actually  heard  was: 

"If  [scornfully]  you  believe  the  defendant's 
testimony  you  will  of  course  acquit  him.  He  is 

237 


The  Prisoner  at  the  Bar 

presumed  [with  a  shrug  of  the  shoulders]  to  be 
innocent  until  the  contrary  is  proved.  If  you  have 
[another  shrug]  any  reasonable  doubt  as  to  his 
guilt  you  must  give  him  the  benefit  of  it.  On  the 
other  hand,  if  you  accept  the  testimony  offered  in 
behalf  of  the  People  you  may  and  will  convict 
him!"  [The  last  few  words  in  tones  of  thunder.] 
Sometimes  a  judge  becomes  known  as  a  "con- 
victing" judge,  although,  perhaps,  at  the  same 
time  as  a  learned  one.  This  usually  occurs  where 
a  man  of  pronounced  opinions  with  the  advocate's 
temperament  is  elevated  to  the  bench.  Very 
likely  by  inclination  he  is  a  "prosecutor,"  with 
strong  prejudices  against  law-breakers  and  bit- 
terly intolerant  of  technicalities.  The  powers 
that  prey  may  cower  inert  in  their  dens  of  dark- 
ness knowing  full  well  that  if  one  of  them  be 
haled  before  this  Jeffries  he  will  pay  the  utter- 
most penalty.  Yet  the  spectacle  of  such  a  judge 
does  not  increase  the  public  respect  for  law,  and 
juries  sometimes  revolt  and  acquit  out  of  sheer 
resentment  at  such  dictation.  But  happily  these 
men  are  of  the  past,  and  the  more  enlightened 
sentiment  of  to-day  would  frown  as  much  upon  a 
"hanging"  judge  as  upon  a  jelly-backed  wearer  of 
the  gown  who  was  afraid  of  the  displeasure  of 
some  politician  if  a  "heeler"  were  convicted  and 
who  ruled  systematically  against  the  people  be- 

238 


The  Judge 

cause  they  had  no  appeal  and  could  take  no  ex- 
ceptions to  his  conduct. 

Nothing  strikes  so  sharply  at  our  conception  of 
liberty  as  the  failure  of  criminal  justice,  and  the 
conviction  of  a  defendant  not  legally  proven 
guilty  or  the  acquittal  of  an  influential  criminal 
has  a  more  disastrous  effect  upon  the  body  politic 
than  ten  thousand  bales  of  anarchistic  propa- 
ganda. The  partisan  judge,  who  makes  up  his 
mind  to  convict  or  acquit  if  he  can,  may  be  right 
nine  times  out  of  ten,  but  the  other  time  he  com- 
mits an  outrage.  The  judicial  temperament  is  a 
jewel  above  all  price.  The  writer  recalls  a  cer- 
tain case  of  a  variety  subject  at  the  time  to  great 
public  condemnation,  where  the  judge  before  the 
indictment  was  moved  for  trial,  inquired  casually 
of  the  clerk  what  the  defendant  was  charged  with. 
When  he  learned  the  nature  of  the  accusation  he 
exclaimed  audibly: 

"Ha!  He's  one  of  those s,  is  he?  Well, 

I'LL  try  this  case !"  And  he  did.  Unfortunately 
judges  often  "try"  cases,  either  for  the  defendant 
or  against  him. 

Nothing  is  more  unfortunate  for  the  judicial 
equilibrium  than  the  fact  that  the  prosecution  has 
no  right  of  appeal  in  the  event  of  a  verdict  of 
acquittal.  The  judge  may  persistently  prevent 
the  district  attorney  from  putting  questions  which 

239 


The  Prisoner  at  the  Bar 

are  both  competent  and  proper  and  rule  flatly 
against  him  on  the  most  obvious  points  of  law 
without  any  redress  on  the  part  of  the  people.  A 
weak  judge  will  take  no  chances  on  being  reversed 
and  will  pursue  this  course,  while  at  the  same  time 
he  is  allowing  every  latitude  to  defendant's  coun- 
sel and  is  ruling  in  his  favor  in  defiance  of  the 
established  doctrines  of  law. 

A  criminal  lawyer  of  great  adroitness,  learning 
and  probity,  after  he  had  concluded  an  argument 
of  the  most  utter  absurdity  to  which  the  presiding 
judge  had  listened  with  much  attention  and  ap- 
parent consideration,  frankly  stated  to  the  writer : 

"You  think  my  argument  was  nonsense?  Well, 
you  are  quite  right,  it  was.  But  no  proposition  of 
law  is  too  far-fetched  or  ridiculous  to  be  advanced 
in  behalf  of  a  defendant  without  some  prospect  of 
success  in  our  criminal  courts."  The  lawyer  in 
question  will  undoubtedly  recognize  his  dictum  in 
these  pages. 

The  attitude  and  disposition  of  the  various 
judges  becomes  speedily  known  among  the  mem- 
bers of  what  is  popularly  known  as  the  "criminal 
bar,"  and  heroic  efforts  (often  successful)  are 
made  to  bring  certain  cases  before  the  "right" 
judge. 

"Do  you  think  I'd  try  the  Smith  case  before 

?"  one  will  say.     "Not  on  your  life!" 

240 


The  Judge 

In  similar  fashion  lawyers  retained  by  com- 
plainants will  seek  to  have  their  cases  put  on  the 
calendar  of  such  and  such  a  judge. 

'Tut  it  before ,"  they  will  say.  "He's 

hell  on  larceny !" 

Some  judges  are  supposed  to  be  more  lenient 
in  the  matter  of  sentences  than  their  brothers  of 
the  bench,  but  the  writer,  after  six  years  of  ob- 
servation, believes  this  to  be  a  fiction.  They  are 
all  lenient, — entirely  too  much  so. 

Much  of  the  impression  among  criminal  law- 
yers that  they  will  fare  worse  at  the  hands  of  one 
member  of  the  judiciary  than  another  is  due  to 
the  obvious  fact  that  some  judges  are  by  reason 
of  their  training  better  suited  to  sit  in  certain 
classes  of  cases  than  others.  One  may  have  had 
an  exhaustive  experience  in  commercial  matters 
and  thus  be  better  qualified  to  pass  upon  the  ques- 
tions of  law  involved  therein.  Another  may  have 
heard  many  complicated  cases  involving  expert 
testimony,  etc.,  etc.  Of  course  as  a  rule  the  less 
well  equipped  a  judge  is  to  hear  a  certain  kind 
of  case  the  more  apt  he  will  be  to  listen  to  ill- 
founded  argument  on  the  law  or  the  facts.  No 
insurance  swindler  would  want  to  be  tried  before 
an  expert  on  insurance  law.  He  would  very  natu- 
rally prefer  a  judge  whose  experiences  had  con- 
verged upon  assault  and  battery.  It  must  be 

241 


The  Prisoner  at  the  Bar 

admitted  that  occasionally  a  judge  is  to  be  found 
who  seems  to  feel  that  every  complainant  who  has 
lost  money  in  a  commercial  transaction  has  no 
standing  in  the  criminal  courts  but  must  be  rele- 
gated to  civil  tribunals.  This  is  but  another  way 
of  saying  that  such  a  judge  does  not  believe  that 
the  criminal  law  is  meant  to  cover  cases  where 
there  has  been  fraud  in  commercial  transactions. 
This  is  hardly  to  be  wondered  at  considering  the 
present  ineffectiveness  of  our  statutes  governing 
such  classes  of  crime. 

The  writer  recalls  prosecuting  such  a  case  be- 
fore a  certain  judge  who,  after  hearing  some 
rather  complicated  evidence  in  regard  to  certain 
written  instruments,  called  abruptly  for  the  de- 
fendant. The  latter  took  the  stand,  and  the 
judge  inquired  with  a  smile : 

uYou  didn't  intend  to  cheat  this  man,  did  you?" 

"Certainly  not!"  cried  the  defendant. 

"Gentlemen  of  the  jury!"  said  the  judge. 
"This  is  not  the  kind  of  case  that  should  be 
brought  before  a  jury  at  all.  This  court  is  not 
the  place  to  collect  civil  debts.  I  instruct  you  to 
acquit." 

Learning  wisdom  by  experience,  the  writer 
moved  the  case  of  the  co-defendant  for  trial  be- 
fore another  judge  and  convicted  him,  although 
he  was,  if  anything,  less  guilty  than  the  first.  He 

242 


The  Judge 

was  sentenced  to  a  substantial  term  in  State's 
prison. 

As  a  rule,  however,  little  fault  can  be  found 
with  the  conduct  of  our  judges  at  criminal  jury 
trials.  In  some  instances  it  may  seem  to  one  side 
or  the  other  that  a  judge  shows  bias,  but  these 
cases  are  comparatively  few  and  seldom  result  in 
any  actual  miscarriage  of  justice.  If  some  judges 
are  inclined  to  rule  against  the  People  upon 
doubtful  questions  of  law,  this  in  the  long  run 
has  at  least  the  beneficial  effect  of  reducing  the 
number  of  cases  reversed  upon  appeal.  The 
judges  are  almost  invariably  courteous,  long-suf- 
fering, and  given  to  allowing  the  greatest  latitude 
to  each  side  in  getting  its  evidence  before  the 
jury.  In  addition  they  are  practical  men  of  com- 
mon-sense, most  of  them  of  long  and  profitable 
experience,  and  experts  in  the  rapid  disposition 
of  business. 

Let  us  now  turn  to  the  other  and  no  less  im- 
portant function  of  the  judge, — the  imposition  of 
sentence.  It  is  a  platitude  that  the  chief  failing 
of  modern  criminal  justice  is  the  inequality  of 
punishment.  It  may  well  be  and  often  is  the  case 
that  in  one  branch  of  the  General  Sessions  a  pris- 
oner is  being  released  upon  "parole"  under  a 
"suspended"  sentence  at  the  precise  moment  that 
some  other  and  no  more  guilty  defendant  in  an- 

243 


The  Prisoner  at  the  Bar 

other  branch  of  th«  same  court  is  being  sentenced 
to  prison  for  three,  five  or  even  ten  years  at  hard 
labor. 

That  most  able  and  practical  of  English  crim- 
inal judges,  Sir  Henry  Hawkins,  has  this  to  say 
in  his  reminiscences  in  the  matter  of  sentences  of 
Convicted  persons: 

"The  want  of  even  an  approach  to  uniformity 
in  criminal  sentences  is  no  doubt  a  very  serious 
matter,  and  is  due,  not  to  any  defect  in  the  crim- 
inal law  (much  as  I  think  that  might  be  improved 
in  many  respects),  but  is  owing  to  the  great  di- 
versity of  opinion,  and  therefore  of  action, 
which  not  unnaturally  exists  among  criminal 
judges. 

"The  result  of  this  state  of  things  is  extremely 
unsatisfactory,  and  the  most  glaring  irregular- 
ities, diversity  and  variety  of  sentences  are  daily 
brought  to  our  notice,  the  same  offence  committed 
under  similar  circumstances  being  visited  by  one 
judge  with  a  long  term  of  penal  servitude,  by 
another  with  simple  imprisonment,  with  nothing 
appreciable  to  account  for  the  difference. 

uln  one  or  the  other  of  these  sentences  discre- 
tion must  have  been  erroneously  exercised.  .  .  . 
Experience,  however,  has  told  us  that  the  pro- 
foundest  lawyers  are  not  always  the  best  admin- 
istrators of  the  criminal  law.  ..." 

244 


The  Judge 

Sir  Henry  likewise  speaks  of  the  great  intel- 
lectual difficulty  of  a  conscientious  English  judge 
in  trying  to  determine  for  himself  the  amount  of 
punishment  he  should  inflict  in  any  given  case. 
The  English  bench  occupies  an  altitude  practically 
unknown  in  this  country.  Access  to  it  is  far  less 
easy  than  with  us,  and  the  personal,  familiar,  and 
off-hand  method  of  communication  between  the 
judge  and  the  bar,  not  to  mention  interested  out- 
side parties,  witnesses,  and  relatives  of  the  de- 
fendant, in  vogue  in  our  trial  courts  would  hardly 
be  viewed  there  with  favor.  It  is  the  wholesale 
attempted  interference  with  the  action  of  the 
judges  in  our  criminal  courts  that  imparts  a  flavor 
of  indecision  and  arbitrariness  to  so  many  scenes 
upon  a  sentence  day.  It  is  not  unheard  of  to  see 
a  prisoner  actually  at  the  bar  awaiting  sentence 
while  the  judge  upon  the  bench  holds  a  sort  of 
open  levee,  free  to  all  comers,  in  which  the  pris- 
oner's lawyer,  his  wife,  the  officer  who  made  the 
arrest,  the  complainant,  and  the  district  attorney 
(and  sometimes  others  who  have  far  less  claim 
to  be  heard)  endeavor  to  bring  the  judge  to  their 
own  particular  way  of  thinking,  and  harangue 
him  and  each  other  in  tones  by  no  means  always 
either  deferential  or  amicable.  Meanwhile  the 
judge  who  will  permit  any  such  performance  sits 
with  an  expression  of  exasperated  indecision,  and 

245 


The  Prisoner  at  the  Bar 

usually  finally  ends  the  matter  by  "remanding" 
the  prisoner  for  further  investigation.  Such 
scenes  are  calculated  to  bring  the  administration 
of  justice  into  contempt.  Snap-shot  judgments 
formed  in  the  midst  of  an  altercation  may  be  un- 
fair to  the  defendant  and  frequently  are  so  to  the 
People.  A  judge  who  tries  to  please  everybody 
ends  by  pleasing  nobody  and  makes  a  farce  of 
justice.  The  administration  of  the  criminal  law 
is  not  a  pleasing  matter  nor  is  it  conducted  for  the 
purpose  of  pleasing  the  various  parties.  The 
judge  is  there  to  attend  to  his  own  business  and 
make  his  own  decisions.  The  writer  once  heard 
a  judge  inflict  sentence  in  the  following  manner: 

"Your  counsel  says  sentence  ought  to  be  sus- 
pended upon  you.  The  district  attorney  says  you 
ought  to  get  five  years  in  State's  prison.  Well, 
I'll  split  the  difference  and  send  you  to  the  El- 
mira  Reformatory." 

The  sentence  may  have  been  the  result  of  a 
conscientious  and  careful  attempt  upon  the  part 
of  the  judge  to  decide  the  question,  but  the 
phraseology  in  which  it  was  couched  will  hardly 
commend  itself  as  a  standard. 

A  thousand  indefinite  factors  enter  into  the  de- 
termination of  the  exact  amount  of  punishment  to 
be  meted  out  to  an  offender,  and  relatively  trivial 
circumstances  may  eventually  decide  whether  the 

246 


The  Judge 

stroke  of  the  judge's  pen  in  his  sentence  book 
shall  swerve  from  a  "three"  into  a  "five."  As- 
suming that  the  judge  have  the  rectitude  of  a 
granite  monolith  and  be  impervious  to  influence 
of  every  sort,  he  is  nevertheless  compelled  when 
inflicting  sentence  to  depend  in  large  measure 
upon  "hearsay"  testimony  and  evidence  that 
could  not  possibly  be  admitted  upon  actual  trial. 
He  seeks  to  find  out  if  he  can  what  the  past  rec- 
ord and  reputation  of  the  defendant  have  been, 
and  in  so  doing  often  is  forced  to  rely  almost  en- 
tirely upon  the  word  of  the  officer  who  originally 
made  the  arrest.  If  the  latter  be  vindictive  he 
can  easily  convey  the  impression  that  the  defend- 
ant is  a  man  of  the  worst  possible  character  who 
has  hitherto  had  the  luck  to  escape  being  caught. 
In  most  cases  the  prisoner  has  little  opportunity 
to  traverse  these  vague  and  generally  unheard 
allegations.  Again  it  often  happens  that  he  has 
been  previously  arrested.  This  fact  is  of  course 
excluded  upon  the  trial  for  his  present  crime  upon 
the  common-sense  doctrine  that  the  fact  of  his 
former  arrest  of  itself  proves  nothing  whatever 
as  to  his  guilt  or  innocence  of  the  charge  upon 
which  he  was  thus  arrested.  When,  however,  he 
comes  up  for  sentence  it  is  frequently  considered 
by  the  court,  no  matter  what  the  subsequent  dis- 
position of  the  case  against  him  may  have  been, 

247 


The  Prisoner  at  the  Bar 

on  the  general  assumption  that  "where  there  is  so 
much  smoke  there  is  generally  a  little  fire."  If 
he  has  actually  been  convicted  before,  the  fact 
weighs  heavily  against  him. 

Almost  anything  may  be  presented  for  the  con- 
sideration of  the  judge,  however  remote  its  con- 
nection with  the  crime  of  which  the  defendant  has 
been  convicted,  and  either  as  militating  for  or 
against  the  prisoner.  Affidavits,  letters,  news- 
paper clippings  and  memoranda  are  submitted 
tending  to  show  that  he  is  of  either  good  or  bad 
character,  has  had  a  reputable  or  a  disreputable 
past,  has  or  has  not  committed  or  attempted  to 
commit  other  crimes,  or  is  or  is  not  likely  to  "re- 
form." Often  these  may  have  a  good  deal  of 
weight,  but  the  persons  who  present  them  are  al- 
most never  sworn  or  placed  upon  the  witness-stand 
or  the  defendant  or  prosecutor  given  a  chance  to 
cross-examine  them  as  to  their  accuracy. 

The  mere  attitude  of  complainants,  obviously 
an  entirely  immaterial  matter,  is  also  often  a  con- 
siderable factor  in  determining  how  the  prisoner 
shall  be  disposed  of.  If  they  are  vindictive  and 
anxious  to  "make  an  example"  of  the  offender  it 
may  happen  that  they  will  persuade  the  judge 
honestly  to  believe  that  a  heavy  sentence  should 
be  inflicted,  whereas  if  they  are  sorry  for  the  pris- 
oner and  his  family  and  are  willing  to  "give  him 

248 


The  Judge 

another  chance,"  and  intercede  strongly  for  him, 
the  judge  may  "suspend  sentence"  upon  the  same 
man.  Now  the  attitude  of  the  parties  wronged 
is  largely  determined  by  the  character  and  dispo- 
sition of  the  parties  themselves,  and  of  course  in 
many  cases  has  no  relation  whatever  to  the  real 
rights  of  the  case.  For  example,  a  half-drunken 
laborer  lacking  the  money  to  buy  liquor  may  wan- 
der into  an  area  and  cut  away  a  strip  of  copper 
water-spout  belonging  to  some  old  lady.  He  sells 
it  for  a  few  cents  and  then  is  arrested  and  is  con- 
victed of  petty  larceny.  No  one  has  any  particu- 
lar interest  in  the  case  and  the  old  lady  comes  into 
court  and  begs  for  the  defendant's  "parole."  He 
has  hitherto  led  a  decent  life  and  the  judge  lets 
him  go.  Now,  if  the  same  man,  instead  of  steal- 
ing a  piece  of  pipe  out  of  an  area,  finds  himself 
in  the  vicinity  of  a  freight  yard  and  cabbages  a 
piece  of  iron  belonging  to  a  railroad  company,  he 
is  no  sooner  convicted  than  the  attorneys  for  the 
company  swarm  about  the  judge  demanding  that 
"this  wholesale  pillage  of  corporation  property" 
be  put  an  end  to,  that  an  example  be  made  of  such 
thieves,  and  insisting  that  it  is  an  important  case 
where  a  severe  sentence  should  be  inflicted.  The 
judge  cannot  be  blamed  if  his  mind  is,  to  a  certain 
extent,  affected  by  the  representations  of  these 
gentlemen  and  he  may  easily  give  the  defendant 

249 


The  Prisoner  at  the  Bar 

six  months  or  a  year  in  the  penitentiary.  The 
moral  guilt  of  the  prisoner  is  precisely  the  same 
and  so  will  be  the  significance  of  his  punishment 
so  far  as  its  serving  as  a  deterrent  to  himself  or 
to  others  is  concerned. 

Another  instance  is  where  a  young  clerk  in  a 
banking,  express,  or  insurance  office  is  caught  pil- 
fering. He  has,  to  be  sure,  violated  the  trust  re- 
posed in  him,  but  if  the  officers  of  the  company 
are  disposed  to  intercede  in  his  behalf  and  express 
the  belief  that  he  uhas  learned  his  lesson"  it  is 
probable  that  they  can  persuade  the  judge  to  give 
the  boy  another  chance,  whereas  if  their  attitude 
were  otherwise  he  would,  and  perhaps  very  prop- 
erly, be  sent  to  Elmira  or  to  State's  prison.  It 
thus,  in  many  cases,  lies  within  the  power  of  the 
lawyer  for  a  defendant,  if  he  be  assiduous,  per- 
suasive, or  have  influence  which  can  be  exerted 
upon  the  complainant  in  the  case,  to  lessen  mate- 
rially the  sentence  of  his  client,  who  without  his 
services  would  perhaps  receive  the  maximum  of 
punishment.  The  poor  or  friendless  prisoner, 
who  cannot  pay  for  able  or  indefatigable  counsel, 
inevitably  suffers  in  consequence,  for  his  defence 
to  punishment  after  trial  cannot  be  adequately 
presented.  His  guilt  is  the  same. 

Another  matter,  frequently  entirely  fortuitous, 
which  yet  may  affect  the  question  of  punishment, 

250 


The  Judge 

is  the  fact  of  restitution.  Where  a  prisoner  has 
been  guilty  of  embezzlement  or  theft  and  after- 
wards returns  the  money  it  is  almost  inevitably 
taken  into  consideration  when  sentence  is  imposed. 
Naturally  it  is  apt  to  affect  the  attitude  of  the 
complainant  in  the  highest  degree.  Now,  if  the 
offender  be  merely  foolish,  he  very  probably  has 
spent  the  money  he  has  stolen  in  gambling  or 
feasting,  while  if  he  be  shrewd  and  cunning  he 
has  laid  it  by  until  he  can  accumulate  enough  to 
go  to  South  America.  In  the  latter  case  he  can 
be  made  to  disgorge;  in  the  former  he  cannot, 
and  is  often  far  worse  off  when  he  comes  to  be 
sentenced  than  if  he  had  been  more  criminally 
minded. 

From  what  has  been  said  the  reader  should  not 
infer  that  the  majority  of  sentences  are  excessive. 
In  point  of  fact  the  leniency  of  most  of  our  judges 
is  surprising,  and  when  they  err  it  is  invariably 
upon  the  side  of  mercy.*  The  sentences  actually 
inflicted  are  often  so  short  that  they  must  seem 
to  the  average  layman  almost  trivial,  and  the 
number  of  cases  in  which  sentence  is  "suspended" 
and  the  offender  paroled  in  the  custody  of  the 
Prison  Association  is  almost  seventy-five  per  cent 
of  the  total  number  of  first  convictions. 

*Cf.  "Light  Sentences  and  Pardons,"  by  Frederick  Bailsman, 
39  American  Law  Rev.  727. 

251 


The  Prisoner  at  the  Bar 

The  reasons  for  this  leniency  are  varied.  Pri- 
marily it  is  because  the  judge  realizes  that  it  is 
not  so  much  the  length  of  imprisonment  as  the 
fact  that  the  defendant  is  imprisoned  at  all  that, 
in  the  majority  of  cases,  acts  as  a  deterrent  upon 
that  particular  offender  and  upon  those  to  whom 
his  conviction  is  calculated  to  serve  as  an  example ; 
secondarily,  it  is  due  to  the  sentimental  attitude 
of  society  towards  criminals  of  all  varieties;  and, 
lastly,  to  an  appreciation  of  the  unfortunate  in- 
equality of  punishment,  and  the  difficulty  in  ade- 
quately and  justly  determining  what  weight  should 
be  given  to  hearsay  evidence  as  to  the  convict's 
past  history.  In  some  instances  leniency  may  arise 
from  other  and  less  creditable  sources,  such  as 
sheer  cowardice  in  defying  influence,  political  or 
otherwise,  the  desire  to  curry  popular  favor  in 
the  hope  of  subsequent  preferment  in  office,  or 
possibly  from  the  hope  that  if  a  light  sentence  is 
inflicted  the  case  will  not  be  appealed  and  the  con- 
viction reversed.  This  dread  of  reversal  in  the 
case  of  some  judges  amounts  almost  to  hysteria, 
and  there  are  well-known  instances  in  which 
judges  in  the  criminal  courts  have  stood  heroically 
by  the  district  attorney  and  the  People  with  the 
result  that  some  scoundrel  of  great  political  in- 
fluence has  been  convicted,  and  have  then  com- 
pletely nullified  the  effect  of  their  good  conduct 

252 


The  Judge 

by  weakly  suspending  sentence  or  by  inflicting  one 
so  slight  as  to  arouse  the  amusement  and  contempt 
of  even  the  defendant  himself. 

The  ultimate  object  of  the  proper  administra- 
tion of  criminal  justice  is  to  sustain  and  increase 
the  general  respect  for  law.  If  it  result  in  a  les- 
sened regard  for  law  by  engendering  a  belief  that 
its  officers  are  weak,  cowardly,  venal,  or  ineffect- 
ive, it  is  a  failure.  The  adjuration  therefore  to 
avoid  even  the  appearance  of  evil  applies  strongly 
to  all  members  of  the  bench.  Nothing  conduces 
more  to  lawlessness  than  a  popular  impression 
that  criminal  judges  are  incapable,  "easy,"  or  are 
subject  to  influence.  A  judge  who,  it  is  supposed, 
can  be  "reached,"  is  an  incentive  to  crime.  Now 
it  is  highly  improbable  that  any  judge  is  ever 
"reached."  Our  judges  are  honorable  men.  But 
once  let  an  impression  to  the  contrary  get  abroad 
among  criminals  and  the  same  result  follows  as 
if  the  judge  were  actually  "crooked."  If  a  judge 
is  supposed  to  be  amenable  to  influence,  the  crim- 
inal will  assume  that  his  own  particular  pull  will 
be  effective. 

As  an  illustration,  let  us  suppose  that  one  of  a 
band  or  "gang"  of  young  toughs  has  been  appre- 
hended for  making  a  vicious  assault  which  might 
well  have  resulted  in  murder.  Perhaps  he  has 
been  paid  fifty  or  a  hundred  dollars  to  "knock 

253 


The  Prisoner  at  the  Bar 

out"  (kill)  his  victim.  He  receives  a  fair  trial 
and  is  convicted.  He  deserves  all  he  can  get — 
ten  years.  Instead  he  is  sent  to  the  Elmira  Re- 
formatory. The  rest  of  the  gang,  with  their 
hangers-on,  amounting  in  number  very  likely  to 
forty  or  fifty  youths  and  men,  are  immediately 
convinced  either  that  they  have  been  able  to  in- 
fluence the  judge  through  their  political  friends  or 
that  he  and  his  associates  are  "easy."  "Going 
to  Elmira"  is  nothing  in  their  eyes;  and  the  con- 
viction of  their  comrade  results  in  no  deterrent 
effect  upon  them  whatever.  He  becomes  a  clever 
hero.  Any  one  of  them  is  ready  to  undertake  the 
same  job  at  the  same  price.  If  his  conviction 
be  reversed  and  he  be  set  at  liberty  they  conclude 
that  in  addition  the  authorities  are  incapable  and 
that  they  can  "beat  the  case"  any  time  they  hap- 
pen to  be  caught.  The  effect  of  an  important 
conviction  reversed  in  its  effect  upon  lawless  sen- 
timent cannot  be  overestimated. 

A  sense  of  judicial  propriety  is  one  of  the  most 
to  be  desired  qualities  in  a  judge.  The  slightest 
suspicion  that  he  is  giving  ear  to  voices  from 
behind  the  dais  nullifies  his  effectiveness  and  de- 
stroys popular  respect  for  the  law  which  he  may 
perhaps  in  fact  enforce  with  ability  and  justice. 
The  sight  of  a  politician  emerging  from  a  judge's 
chambers  may  baselessly  destroy  the  latter's  in- 

254 


The  Judge 

fluence  for  good.  Actual  infractions  of  judicial 
propriety  should  be  visited  with  the  utmost  se- 
verity. Prescott  speaks  of  the  jealousy  of  the 
Aztecs  of  the  integrity  of  their  bench: 

"To  receive  presents  or  a  bribe,  to  be  guilty  of 
collusion  in  any  way  with  a  suitor,  was  punished 
in  a  judge  with  death.  Who  or  what  tribunal 
decided  as  to  his  guilt  does  not  appear.  In  Tez- 
cuco  this  was  done  by  the  rest  of  the  court.  But 
the  king  presided  over  that  body.  The  Tezcucan 
prince,  Nezahua  Epilli,  who  rarely  tempered  jus- 
tice with  mercy,  put  one  judge  to  death  for  taking 
a  bribe,  and  another  for  determining  suits  in  his 
own  house, — a  capital  offence,  also,  by  law.11  Per- 
haps this  was  going  too  far. 

"The  judges  of  the  higher  tribunals,1'  he  con- 
tinues, "were  maintained  from  the  produce  of  a 
part  of  the  crown  lands,  reserved  for  the  purpose. 
They,  as  well  as  the  supreme  judge,  held  their 
offices  for  life.  The  proceedings  in  the  courts 
were  conducted  with  decency  and  order.  The 
judges  v/ore  an  appropriate  dress,  and  attended 
to  their  business  both  parts  of  the  day,  dining 
always,  for  the  sake  of  despatch,  in  an  apartment 
of  the  same  building  where  they  held  their  ses- 
sion; a  method  of  proceeding  much  commended 
by  the  Spanish  chroniclers,  to  whom  despatch  was 
not  very  familiar  in  their  own  tribunals.11 

255 


The  Prisoner  at  the  Bar 

We  can  appreciate  to  a  considerable  extent  the 
emotions  of  the  Spanish  chroniclers.  Judges  often 
dine  together,  but  not  always  for  the  sake  of  de- 
spatch. The  writer  has  no  hesitation  in  affirm- 
ing that  disregard  of  the  comfort  and  time  of  ju- 
rors and  witnesses  is  the  most  obvious  fault  of 
certain  of  them.  Some  judges  occasionally  ad- 
journ court  from  one  until  two  and  make  their 
own  appearance  any  time  before  three.  It  is 
small  consolation  to  a  juror  nervously  distracted 
by  waiting  to  find  that  the  judge  expects  conscien- 
tiously to  make  up  the  time  thus  lost  by  keeping 
the  jury  at  work  until  five.  In  most  instances, 
however,  the  judges  are  more  punctual  and  busi- 
ness-like than  the  jurors  and  counsel  who  appear 
before  them. 

Some  judges  occasionally  seem  to  feel  that  the 
benefit  of  the  "reasonable  doubt"  to  which  a  pris- 
oner is  entitled  before  the  jury  remains  with  and 
should  be  given  to  him  even  after  conviction. 
This  sometimes  manifests  itself  in  the  extraordi- 
nary phenomenon  of  a  defendant  who  has  stood 
trial  and  perjured  himself  in  his  own  behalf  re- 
ceiving a  less  severe  sentence  than  his  co-defend- 
ant who  has  pleaded  guilty  and  saved  the  county 
the  expense  and  labor  of  a  trial.  There  was  once 
a  case  where  this  occurred  in  which  two  of  the 
perpetrators  of  a  brutal  robbery  pleaded  guilty 

256 


The  Judge 

and  received  seven  years  apiece,  while  their  "side- 
partner,"  after  being  convicted  before  a  jury,  was 
given  five  years  by  another  judge.  It  was  not  in 
this  case,  but  an  earlier  one,  in  which  a  judge, 
obviously  on  the  theory  of  reasonable  doubt,  ad- 
dressed the  prisoner  substantially  as  follows : 

"Young  man,  you  have  been  convicted  by  a 
jury  of  your  peers  after  a  fair  trial.  Your  offence 
is  a  heinous  one.  You  took  the  stand  and  per- 
jured yourself,  asserting  your  innocense.  I  might 
inflict  a  severe  punishment.  Still,  under  all  the 
circumstances,  and  in  view  of  your  claim  that  you 
are  not  guilty,  I  will  suspend  sentence." 

The  reader  should  not  and  will  not  assume  that 
these  instances  of  unequal  punishment  and  erratic 
clemency  are  set  forth  for  the  purpose  of  illus- 
trating the  usual  course  of  justice.  They  are  the 
exception,  not  the  rule.  That  they  sometimes  oc- 
cur cannot  be  denied.  They  should  never  occur. 
They  are  probably  due  frequently  to  utter  weari- 
ness on  the  part  of  the  judge,  coupled  with  the 
realization  that  it  is  sometimes  practically  a  hu- 
man impossibility  to  get  at  the  true  inwardness 
of  a  case  or  know  what  to  do.  Seemingly  arbi- 
trary sentences  on  close  observation  are  some- 
times found  to  be  erratic  only  in  the  language  in 
which  they  are  phrased, — not  in  the  amount  of 
the  punishment.  The  table  on  the  next  page 

257 


The  Prisoner  at  the  Bar 


Classijicd  list  of  the  number  of  persons  convicted,  and  the  average 

term  imposed  for  each  particular  crime  during  the  year  1907 

in  New  York  County. 

MALES 


OFFENCE 

No. 

AGGREGATE 
TERM  OF 
SENTENCES 

AVERAGE  TERM 
EACH  PERSON 

Years 

Months 

Years 

Month* 

Abduction 

•! 

I 
5 
30 
1  20 

6 
6 

2 
2 
13 

38 
146 

3 
i 
II 
3 
3 
13 
I 

2 

I 

10 
II 

23 

6 
I 
i 

3 

32 
4 
27 
15i 
o 
3 
94 
187 
385 
17 
23 
34 

26 

14 

12 
IO 

63 
10 

209 
478 

44 

2 
165 
30 

Sente 
260 
24 
19 
18 
80 
42 
245 
59 
5 
4 
29 

I 

7 

IO 

6 
7 
5 

2 

6 
4 

I 

6 

'6 

2 

3 

8 

I 

I 
9 
need  to 

See  note 
6 
5 

*6 

*7 

2 

6 

9 
I 

8 
2 

6 
3 
3 

,i 

6 
3 
4 
3 
3 
3 

2 

6 
5 
4 
3 
5 
3 
14 

2 

15 
IO 

be  exe 
20 
24 
9 
18 
8 
3 

10 

9 

5 
4 
9 

9 
4 
6 
6 
II 
3 

2 

4 
II 

9 
3 

5 

3 

IO 

8 

3 

:uted 

'6 
8 

10 

8 

IO 

6 

9 

8 

Abandonment   

Assault,  ist  degree   ..... 

2d  degree  

Bigamy  .  . 

Bribery  

Burglary,  ist  degree  

2d  degree  

a         3d  degree  

Blackmail  

Carrying  burglar's  tools  .  .  . 
Carrying  concealed  weapons 
Election  law   

Extortion  

Felony  (N.  C.)  

Forgery,  ist  degree  

2d  degree  

3d  degree      . 

Grand  larceny,  i  st  degree  . 
2d  degree.. 
Kidnapping  .  . 

Maiming  

Manslaughter,  ist  degree.. 
2d  degree..  . 
Murder,  ist  degree  

"         2d  degree. 

Attempted  murder,  ist  deg.  . 

Rape,  i  st  degree  

*     2d  degree  

Receiving  stolen  goods  
Robbery,  ist  degree  

2d  degree 

u          3d  degree  

Seduction  

Sodomy.          

Total  

550 

2,845 

7 

5 

2 

NOTE. — In  preparing  the  above  table,  the  maximum  terms  of  all  indeter- 
minate sentences  are  computed,  except  in  convictions  of  murder  in  the  second 
degree,  in  which  the  minimum  terms  of  twenty  years  are  used.  (Section  187, 
Penal  Code.) 

258 


The  Judge 


STATE  PRISON— FEMALES 


OFFENCE 

No. 

TERM  OF 
SENTENCE 

AVERAGE  TERM 
OF  SENTENCE 

Years 

Months 

Years 

Months 

Assault,  2d  degree  

5 
7 
7 
I 
i 
i 
I 

13 
40 

23 

7 
13 
5 
3 

IO 

3 

8 

6 
'<3 

2 

5 
3 
7 
13 
5 
3 

9 
9 
4 

i 

'6 

Grand  larceny,  ist  degree.. 
"        2d  degree  .  . 
Manslaughter,  ist  degree.  . 
2d  degree.  .  . 
Receiving  stolen  goods  .... 
Robbery,  ist  degree  

Total  

23 

107 

2 

4 

8 

shows,  the  writer  believes,  that  the  average  sen- 
tences imposed  in  the  various  classes  of  crime 
bear  a  remarkably  sound  relation  to  one  another. 
Could,  however,  the  separate  sentences  be  ex- 
amined, an  astonishing  and  lamentable  inequality 
would  be  discovered, — an  inequality  which  is  an 
actual  injustice,  but  an  injustice  which  cannot  be 
prevented  under  our  present  system.  Unless  all 
offences  should  be  tried  before  a  single  judge  of 
unvarying  disposition  and  physical  condition  ab- 
solute equality  could  not  be  secured.  Where  they 
are  tried  before  four  or  five  different  judges  there 
will  be  four  or  five  different  and  constantly  vary- 
ing factors  which  must  be  multiplied  into  the 
constants  shown  by  the  record.  Some  judges 
regard  certain  crimes  as  more  detestable  than 
others  do,  and  some  judges  see  greater  possibili- 
ties of  reformation  in  any  given  criminal  than 
others.  Some  are  more  affected  by  the  immor- 

259 


The  Prisoner  at  the  Bar 

ality,  as  distinguished  from  the  illegality,  of  a 
given  crime  than  others,  and  certain  judges  will 
take  into  consideration  features  of  the  case  that 
would  be  entirely  disregarded  by  their  associates. 

This  divergency  of  mental  attitude  accounts  in 
part  for  the  great  curse  of  the  inequality  of  sen- 
tences. Two  cases  suggest  themselves  vividly  as 
examples. 

A  conductor  on  a  surface  car  took  the  place  of 
the  motorman  and  carelessly  ran  into  a  wagon, 
throwing  out  the  driver,  who  died  in  consequence. 
He  was  convicted  of  manslaughter  in  the  second 
degree  and  sentenced  to  ten  years  in  State's 
prison. 

Another  defendant  who  had  killed  a  woman  by 
cutting  her  throat  and  hacking  her  up  with  a 
razor  was  convicted  of  the  first  degree  of  the 
same  crime  and  sentenced  to  the  Elmira  Reform- 
atory. Both  defendants  were  of  approximately 
the  same  age.  In  each  case  the  particular  sentence 
seemed  just  and  fair  to  the  judge  who  presided 
at  the  trial.  It  was  conscientiously  imposed.  Yet 
the  thing  speaks  for  itself. 

It  has  sometimes  been  suggested  that  all  sen- 
tences should  be  imposed  by  all  the  judges  sitting 
en  bane.  While  this  would  entail  great  labor  and 
expense  it  would  undoubtedly,  if  it  were  practi- 
cable, do  much  to  obviate  the  present  unfortunate 

260 


The  Judge 

condition.  Assuming  that  four  judges  composed 
this  sentencing  board,  the  vote  of  the  justice  who 
had  presided  at  the  trial  might,  by  virtue  of  his 
greater  familiarity  with  the  facts,  be  given  a 
weight  equal  to  that  of  the  other  three  combined. 
Had  the  two  sentences  just  named  been  imposed 
by  such  a  board  it  is  far  from  probable  that  they 
would  have  been  inflicted  in  the  same  terms. 

An  effort  has  been  made  in  the  preceding  pages 
to  set  forth  some  of  the  failings  of  criminal  jus- 
tice on  the  part  of  the  court  which  seem  open  to 
honest  criticism.  The  members  of  the  bench 
themselves  would  be  the  last  to  minimize  the  in- 
justice of  the  inequality  of  sentences  which  under 
our  present  system  seems  inevitable,  and  are  con- 
tinually endeavoring  to  remedy  it  so  far  as  pos- 
sible. They  also  recognize  the  fact  that  it  is 
often  difficult,  if  not  out  of  the  question,  to  pre- 
serve in  the  face  of  overwhelming  evidence  an 
imperturbable  serenity  of  demeanor  when  the  fact 
of  the  defendant's  guilt  is  clear  and  the  details 
of  his  crime  are  revolting  to  every  moral  sense, 
and  they  are  equally  ready  to  acknowledge  that 
on  occasion  they  may  inadvertently  disclose  their 
impression  that  while  they  may  "let  a  case  go  to 
the  jury,"  the  defendant  should  be  acquitted. 
Judges  are,  after  all,  but  men,  and  to  err  is  hu- 
man. But  there  is  hardly  a  judge  upon  the  bench 

261 


The  Prisoner  at  the  Bar 

who  does  not  conscientiously  strive  to  perform  his 
duties  in  such  a  way  that  justice  may  be  secured 
in  the  manner  provided  by  the  Constitution, — by 
leaving  the  jury  untrammeled  in  their  function  of 
determining  upon  the  sworn  evidence  in  the  case 
the  guilt  or  innocence  of  the  defendant.  Finally 
it  should  be  said  that  it  is  not  the  weak  but  the 
strong  judge  that  is  most  apt  to  transgress  in  this 
direction,  and  that  it  is  the  strong  judge  who  is 
most  likely  to  serve  the  best  interests  of  the  com- 
munity. For  the  weak  judge  there  is  no  place  in 
the  administration  of  criminal  justice.  His  pres- 
ence upon  the  bench  is  an  incentive  to  crime  and 
a  reproach  to  his  fellows. 


262 


CHAPTER  XI 

THE  JURY 

IS  trial  by  jury  successful  in  criminal  cases? 
Certainly  it  is  not  popularly  so  regarded.  Even 
lawyers  and  prosecutors  will  usually  agree  that  it 
"works  substantial  justice,"  but  this  does  not  an- 
swer the  question.  In  about  three  cases  out  of 
five  "Judge  Lynch"  himself  works  "substantial 
justice."  The  function  of  the  jury  is  not  to  "work 
justice"  at  all,  but  to  decide  a  limited  question  of 
fact.  They  are  there  for  the  purpose  of  deter- 
mining the  issue  without  prejudice  on  the  one 
hand  or  sympathy  upon  the  other,  and  having  no 
regard  for  the  consequences  of  their  verdict;  they 
must  accept  unquestioningly  the  law  from  the 
judge  upon  every  point  and  base  their  conclusions 
solely  upon  the  sworn  evidence  in  the  case.  This 
they  swear  that  they  will  do.  Yet  they  do  not. 
Why?  Is  it  want  of  intelligence,  lack  of  regard 
for  law,  or  vital  misconception  of  their  function? 
Certainly  it  is  not  from  want  of  intelligence. 
There  can  be  no  question  as  to  the  capability  of 
the  ordinary  juryman  to  perform  his  duties.  The 

263 


The  Prisoner  at  the  Bar 

independent  American  is  singularly  adapted  to 
just  this  form  of  investigation.  If  the  English 
be  "a  nation  of  shopkeepers,"  we  are  a  nation 
of  natural  cross-examiners.  You  will  find  fully 
as  good  verbal  fencing  in  a  New  England  corner 
grocery  store  about  mail  time  as  you  will  in  most 
courts  of  justice.  But  the  very  innate  capacity 
of  the  native  American  to  perceive  the  truth  and 
get  to  the  bottom  of  things,  leads  him  to  believe 
that  he  knows  equally  well,  if  not  better  than  the 
judge,  what  ought  to  be  done  about  it  and  what 
punishment,  if  any,  should  be  inflicted  upon  the 
defendant  under  the  circumstances.  It  is  not  that 
our  jurors  are  incapable  or  uninterested,  but,  par- 
adoxical as  it  may  seem,  that  they  are  too  capable 
and  too  interested.  They  want  to  be  not  only 
jurors,  but  district  attorney,  counsel  for  the  de- 
fendant, expert  witness,  and  judge  into  the  bar- 
gain. 

Your  shopkeeper  in  England  makes  a  less  in- 
telligent, but  a  far  more  satisfactory  juror.  There 
they  will  empanel  a  jury  in  a  few  moments  in  a 
capital  case,  and  so  deeply  implanted  in  the  bosom 
of  each  juryman  is  a  respect  for  the  law  as  such 
and  an  inherited  reverence  for  the  judiciary, 
which  its  uniformly  high  character  has  done  so 
much  to  foster,  that,  provided  the  facts  are  suf- 
ficiently established,  the  sex  of  the  defendant,  the 

264 


The  Jury 

condition  of  his  or  her  family,  the  character  of 
the  motive  for  the  act,  will  not  be  the  subject  of 
discussion  or  even  of  consideration  in  determining 
the  verdict.  It  is  enough  that  they  are  sworn  to 
decide  the  facts  and  the  facts  alone.  They  are 
told  by  the  judge  what  evidence  they  may  con- 
sider, and  what  facts  they  may  not  consider,  and 
did  they  not  obey  his  instructions  they  would  re- 
ceive the  severe  censure  of  the  public  and  the 
press. 

There  is  an  historical  reason  for  this.  In  1666, 
when  a  jury  found  a  verdict  of  manslaughter 
after  having  been  instructed  that  the  evidence 
showed  that  it  was  murder,  Kelyng,  C.J., 
promptly  fined  them  five  pounds  apiece.  On  peti- 
tion, he  reduced  it  to  forty  shillings,  "which  they 
all  paid."  In  1667  he  fined  eleven  of  the  grand 
jury  twenty  pounds  apiece  for  refusing  to  indict 
for  murder.  The  judges  of  the  King's  Bench  said 
he  was  quite  right,  adding,  uand  where  a  petty 
juror,  contrary  to  directions  of  the  court,  will  find 
a  murder  manslaughter,  .  .  .  yet  the  court  will 
fine  them"  (King  vs.  Windham,  2  Keble,  180). 
For  centuries  it  was  the  common  practice  to  pun- 
ish severely  by  imprisonment,  fine,  and  attainder 
juries  who  refused  to  convict  on  what  appeared 
to  the  court  to  be  sufficient  evidence.  Perhaps 
Throckmor ton's  case  in  1554,  when  the  jury  ac- 

265 


The  Prisoner  at  the  Bar 

quitted  the  defendant  of  treason,  is  the  most  fa- 
mous illustration  of  this.  The  court  committed 
the  jury  to  prison,  eight  being  confined  from  April 
17  to  December  12,  and  on  their  discharge  fined 
them,  some  sixty  and  some  two  hundred  and 
twenty  pounds  apiece.  The  reasoning  under  the 
circumstances  was  obvious.  If  a  jury  found  a 
man  guilty  improperly,  he  could  be  pardoned,  but 
"if,  having  pregnant  evidence,  nevertheless,  the 
twelve  do  acquit  the  malefactor,  which  they  will 
do  sometime  .  .  .  the  prisoner  escapeth.  .  .  ." 
It  is  refreshing  to  observe  that  even  English  ju- 
ries "will  do  [this]  sometime."  All  this  natu- 
rally created,  as  it  was  designed  to  create,  a  tre- 
mendous regard  for  the  judge  and  his  instruc- 
tions. 

There  is  at  the  present  time  little  of  this  whole- 
some regard  for  law  in  America.  The  jury  real- 
ize that  the  judge's  elevation  to  the  bench  is  often 
a  matter  of  politics  alone,  and  sometimes  have 
comparatively  little  respect  for  his  character, 
learning,  or  ability.  They  frequently  feel  by  no 
means  confident  that  the  punishment  will  fit  the 
crime,  and  are  anxious,  so  far  as  they  can,  to  dis- 
pose of  the  case  for  themselves.  For  example,  in 
one  case  where  three  defendants  were  found  guilty 
of  stealing  in  company  a  single  article  of  value,  the 
jury  rendered  a  verdict  of  grand  larceny  in  the 

266 


The  Jury 

first  degree  against  one,  grand  larceny  in  the  sec- 
ond degree  against  another,  and  petty  larceny 
against  the  third.  They  did  this  because  of  the 
varying  ages  of  the  defendants,  but  in  so  doing 
obviously  violated  their  oaths  and  usurped  the 
functions  of  the  judge.  Very  likely  "substantial 
justice"  was  accomplished. 

There  are  hundreds  of  jurors  who,  having  in 
all  honesty  taken  the  oath  to  "a  true  verdict 
find,"  will,  once  in  the  jury-room,  frankly  turn 
to  their  fellows  and  exclaim:  "Oh,  let  him  go! 
He's  only  a  kid.  Give  him  another  chance!" 
"Substantial  justice,"  again  at  the  expense  of  our 
regard  for  law. 

As  an  example  of  what  may  occur,  the  case  of 
Rosa  di  Pietro,  tried  for  murder  before  the  Re- 
corder, in  December,  1904,  is  illuminating.  The 
defendant  was  a  young  Italian  woman  of  good 
repute  charged  with  shooting  and  killing  her 
brother-in-law,  who,  the  evidence  clearly  showed, 
had  endeavored  to  persuade  her  to  yield  to  his 
desires.  She  claimed  to  have  shot  him  in  self- 
defence.  Her  story  was  so  obviously  a  fabrica- 
tion that  no  jury  could  have  believed  her,  and 
must  have  found  (if  they  had  considered  the  mat- 
ter at  all)  that  she  pursued  her  would-be  seducer 
down  the  stairs  and  shot  him  in  a  dark  hallway, 
as  he  was  leaving  the  building.  A  "special"  jury 

267 


The  Prisoner  at  the  Bar 

of  perfectly  intelligent  men  promptly  acquitted 
her.  The  writer  presumes  that  after  this  all  the 
Italian  residents  will  get  their  wives  to  do  their 
killing  for  them. 

In  a  well-known  case  the  jury  found  the  defend- 
ant guilty  of  manslaughter,  instead  of  murder, 
because  one  of  their  number  had  read  that  the 
prisoner  had  been  a  "Rough  Rider"  in  the  Cuban 
campaign.  After  they  had  returned  their  verdict 
they  learned  that  he  had  been  nothing  of  the 
kind. 

The  action  of  the  New  York  County  jury  in  a 
criminal  case  is  right  as  to  the  defendant's  guilt 
or  innocence  about  four  times  out  of  five,  but  less 
frequently  as  to  the  appropriate  degree  of  crime.* 
The  percentage  of  proper  verdicts  differs,  of 
course,  in  different  varieties  of  crime.  In  cases 
of  common  felony,  such  as  larceny,  burglary, 
rape,  robbery,  arson,  forgery,  etc.,  it  is  usually 
high;  in  homicides  and  gambling  much  lower; 
and  in  commercial  frauds  and  liquor-tax  cases 
smaller  still,  the  number  of  convictions  being  in- 
considerable. Making  due  allowance  for  the  un- 
conscious prejudices,  sympathies,  and  idosyncra- 
sies  of  mankind,  we  have  still,  as  citizens,  a  right 

*This  estimate  does  not  apply  to  the  actions  of  juries  outside 
of  New  York  County.  In  other  cities  and  in  other  states, 
particularly  in  rural  districts,  the  percentage  of  convictions  is 
often  shockingly  small. 

268 


The  Jury 

to  demand  a  far  higher  degree  of  accuracy  in  the 
verdicts  of  our  juries — to  expect  the  murderer  to 
be  found  guilty  of  murder  and  the  thief  to  be 
stigmatized  as  a  thief.  What  is  the  explanation 
for  this? 

The  fundamental  reason  for  the  arbitrary  char- 
acter of  the  verdicts  of  our  juries  lies  not  in  our 
lack  of  intelligence  as  a  nation,  but  in  our  small 
regard  for  human  life,  our  low  standard  of  com- 
mercial honesty,  our  hypocrisy  in  legislation,  our 
consequent  lack  of  respect  for  law,  and  the  gen- 
eral misapprehension  that  the  function  of  the  jury 
is  to  render  "substantial  justice" — a  misappre- 
hension fostered  by  public  sentiment,  the  press, 
and  even  in  some  cases  by  the  bench  itself,  to 
the  complete  abandonment  of  the  literal  inter- 
pretation of  the  juror's  oath  of  office. 

The  writer  has  heard  judges  from  the  bench 
congratulate  juries  upon  having  rendered  a  "mer- 
ciful verdict"!  They  are  popularly  expected  "to 
temper  justice  with  mercy,"  "exercise  a  wise  dis- 
cretion," and  "to  be  moved  to  magnanimity."  But 
the  jurors  who  satisfy  their  emotions  at  the  ex- 
pense of  their  honesty,  and  the  judge  who  coun- 
tenances the  performance,  are  worse  law-break- 
ers than  the  defendant  himself. 

We  carry  upon  our  statute  books  laws  which 
we  have  no  intention  of  enforcing,  and  which,  in 

269 


The  Prisoner  at  the  Bar 

bur  present  state  of  development,  are  actually 
unenforceable.  Even  law-abiding,  law-loving, 
and  (ordinarily)  conscientious  jurors  will  become 
lawless  when  compelled  to  sit  in  a  case  of  this 
character.  Thus  while  the  three  judges  of  Spe- 
cial Sessions  find  guilty  some  sixty  per  cent  of 
those  brought  before  them  for  violations  of  va- 
rious phases  of  the  liquor-tax  law,  a  conviction 
by  a  jury  in  the  General  Sessions  is  practically 
unheard  of.  The  grand  jury  have  now  reached 
the  point  where  they  practically  refuse  to  indict 
at  all  in  liquor-tax  cases.*  Just  as  long  as  we 

*The  following  figures  may  be  of  interest  to  those  readers  who 
are  interested  in  the  question  of  amending  the  laws  governing 
the  sale  of  liquor: 

In  the  year  1907,  out  of  a  total  of  1,237  cases  which  came 
before  the  Court  of  Special  Sessions,  there  were  334  convictions, 
7  pleas  of  guilty,  223  acquittals,  18  discharges  and  116  transfers 
to  the  General  Sessions.  During  the  last  eight  years  out  of  a 
total  of  7,416  cases,  there  were  3,129  convictions,  244  pleas  of 
guilty,  2,143  acquittals,  395  discharges,  361  demurrers  allowed 
and  1,144  cases  transferred,  on  the  defendant's  motion,  to  Gen- 
eral Sessions,  to  be  tried  under  indictment.  During  this  period, 
very  nearly  half  the  cases  have  resulted  in  convictions. 

These  cases  were  tried,  as  the  reader  is  aware,  by  a  bench  of 
three  judges,  who  decide  both  law  -and  fact.  Compare  this 
record  with  the  result  of  91  transfers,  taken  as  illustrative, 
from  the  Special  to  the  General  Sessions  in  1905.  Of  course, 
each  case  had  to  be  taken  first  before  the  grand  jury.  Eighty- 
four  of  these  cases  were  summarily  dismissed  by  that  body. 
In  the  remaining  seven  instances,  indictments  were  secured. 
Four  of  these  seven  defendants  pleaded  guilty,  two  were  ac- 
quitted by  the  jury,  one  was  discharged  on  his  own  recognizance 
an  none  were  convicted.  In  other  words,  out  of  the  whole  bunch 
of  transfers,  less  than  four  per  cent  of  the  defendants  were 
convicted,  as  against  nearly  fifty  per  cent  of  convictions  in  the 
Special  Sessions,  in  all  liquor-tax  cases  in  the  last  eight  years. 
In  the  same  period,  out  of  a  total  of  1,241  cases  presented  to  the 
grand  jury,  987  were  dismissed  by  that  body.  Of  the  balance, 

270 


The  Jury 

have  hypocrisy  in  religion,  in  business,  and  in  leg- 
islation, so  long  shall  we  have  hypocrisy  in  our 
courts  of  justice. 

Of  course,  as  we  live  in  an  age  when  violence 
is  found  inconvenient  and  annoying,  your  jury 
naturally  condenms  by  its  verdict  crimes  of  a  vio- 
lent character,  and  will  make  but  short  work  of 
highwayman  and  thug.  Burglars  are  unpopular 
both  with  the  public  and  with  the  juror;  and  it 
needs  no  burst  of  rhetoric  to  induce  a  jury  to  find 
a  verdict  against  a  "firebug"  or  a  "cadet."  But 

viz.,  254  in  which  indictments  were  secured,  25  pleaded  guilty, 
36  were  discharged  on  their  own  recognizance,  in  12  cases  the 
bail  was  forfeited,  and  of  the  181  cases  which  actually  were 
tried  before  juries,  165  defendants  were  acquitted  and  16  were 
convicted. 

In  1906,  out  of  85  cases  transferred,  79  were  dismissed,  and 
of  the  remaining  six,  5  defendants  were  acquitted  and  i  was 
discharged.  In  1907  there  were  98  transferred  and  all  wxre 
dismissed  by  the  grand  jury. 

The  significance  of  these  figures  becomes  evident  when  it  is 
realized  that  the  defendants  whose  cases  are  thus  transferred 
are  those  who  are  the  actual  holders  of  licenses.  They  can 
afford  to  pay  for  the  services  of  counsel,  and  their  conviction 
is  of  vastly  more  importance  to  the  community  than  that  of 
their  hirelings  who  actually  sell  the  liquor  over  the  bar.  The 
barkeeper  who  violates  the  law  and  is  caught,  comes  to  trial  in 
the  Special  Sessions,  either  pleads  guilty  or  is  convicted,  and 
receives  a  fine  which  his  employer  promptly  pays.  The  owner 
of  the  saloon  thereupon  discharges  the  defendant  from  his  ser- 
vice and  secures  another  barkeeper.  This  process  can  be  con- 
tinued indefinitely.  But  when  the  owner  himself  is  caught  and 
convicted,  he  is  either  driven  out  of  business  or  has  got  to  oper- 
ate under  another  name.  These  are  the  men  who  apply  for 
and  are  apparently  able  to  secure  transfers  of  thier  cases  to  the 
General  Sessions,  although  any  judge  granting  such  motions  is, 
or,  at  least,  should  be,  aware  of  what  the  practical  result  of 
his  action  will  be.  The  transfer  of  a  liquor-tax  case  upon  the 
order  of  the  judge  sitting  in  Part  I  of  the  General  Sessions  is 
practically  tantamount  to  a  dismissal  of  it 

271 


The  Prisoner  at  the  Bar 

once  step  into  that  class  of  cases,  the  subject  of 
which  is  commercial  fraud,  and  the  jury  look 
upon  the  prosecution  with  averted  eye.  Just  so 
long  as  dishonesty  of  one  kind  or  another  is 
openly  countenanced  in  business,  just  so  long  it 
will  be  practically  impossible,  except  under  un- 
usual conditions,  to  convict  the  fraudulent  bank- 
rupt or  the  retailer  who  has  secured  goods  and 
credit  upon  false  representations.  Mayhap  there 
is  upon  the  jury  some  tradesman  who  has 
"padded"  his  own  credit  statement;  some  one 
who  has  placed  a  fictitious  valuation  on  his  stock, 
or  has  told  alluring  but  unsubstantial  stories  as 
to  his  "orders  on  hand,"  "cash  in  bank,"  and 
"bills  receivable."  What  chance  under  those  cir- 
cumstances of  a  conviction? 

"The  jury,  passing  on  the  prisoner's  life, 
May  have  in  the  sworn  twelve  a  thief  or  two 
Guiltier  than  him  they  try." 

"Why,"  says  a  juror,  "here  they  are  trying  to 
convict  this  fellow  Einstein  of  what  everybody 
does  every  day  in  the  year.  Rubbish!  Am  /  a 
thief?  /  don't  have  any  criminal  intent.  He  was 
just  tryin'  to  boost  his  assets  a  little.  He's  no 
criminal."  And  out  he  goes  to  the  jury-roorn  and 
persuades  the  other  eleven  that  the  defendant  is 
no  worse  than  everybody.  Of  course,  everybody 
isn't  a  thief.  The  syllogism  is  irrefutable. 

272 


The  Jury 

"I  suppose  you  didn't  believe  that  Mr.  Einstein 
made  those  false  statements?"  says  the  writer, 
approaching  him  as  he  steps  into  the  corridor. 
The  juror  pauses  in  lighting  his  cigar. 

"Sure,  he  made  'em  1"  he  remarks.  "Of  course 
he  made  'em!  But,  H — /,  he's  no  criminal!" 
This  is  an  actual  experience. 

Our  distaste  for  physical  violence  has  had  a 
rather  paradoxical  result  so  far  as  the  jury  is 
concerned,  for  it  appears  to  be  coupled  with  a 
small  (and  what  seems  to  be  a  decreasing)  regard 
for  human  life.  Verdicts  of  murder  in  the  first 
degree  are  exceedingly  rare,  and  it  requires  a 
crime  of  a  peculiarly  atrocious  character  to  in- 
duce the  jury  to  send  the  defendant  to  the  electric 
chair.  This  is  due  in  part  to  cowardice  and  in 
part  to  the  misconception  of  their  function  al- 
ready dwelt  upon,  since  in  almost  all  murder  cases 
the  jury  regard  themselves  as  fixing  the  penalty. 
Inasmuch  as  most  persons  who  meet  death  from 
violence  are  themselves  of  violent  character,  the 
jury  frequently  seems  to  believe  that  the  defend- 
ant is  entitled  to  a  certain  amount  of  considera- 
tion for  ridding  the  community  of  his  victim,  and 
this  often  finds  joyful  expression  in  a  verdict  of 
manslaughter. 

Totally  distinct,  however,  from  this  trifling 
with  justice,  whether  it  be  wilful  or  voluntary,  is 

273 


The  Prisoner  at  the  Bar 

the  unconscious  bias  of  each  member  of  the  hu- 
man family  due  to  race,  religion,  education,  and 
character.  Hence  jurors  are  examined  with  an 
elaborate  care  and  minuteness  of  investigation 
which  in  practice  is  often  shown  to  be  ridiculous. 
In  fact  certain  maxims  having  almost  the  force 
of  legal  doctrines  have  grown  up  about  the  selec- 
tion of  a  jury.  A  defendant's  counsel  will  inva- 
riably challenge  an  Irishman  if  his  client  be  a 
negro,  and  vice  versa.  This  is  likewise  apt  to 
be  the  case  if  the  client  be  an  Italian.  Talesmen 
with  wives  and  children  are  generally  supposed 
to  be  more  susceptible  to  arguments  directed  to 
their  sympathies.  Hebrews  are  presumed  to 
make  particularly  undesirable  jurors  for  the  de- 
fence where  the  crime  charged  is  one  of  violence 
or  arson,  and  are  likewise  usually  challenged  when 
the  defence  is  self-defence.  Old  men  are  popu- 
larly supposed  to  make  indulgent  jurors,  although 
the  writer's  own  experience  is  to  the  contrary,  and 
he  has  noticed  that  persons  with  long,  drooping 
mustaches  are  invariably  excused.  Neither  side 
as  a  rule  cares  for  missionaries  or  persons  en- 
gaged in  philanthropic  enterprises,  since  the  pros- 
ecutor feels  instinctively  that  their  eleemosynary 
tendencies  will  extend  to  the  prisoner,  while  the 
defence  has  a  presentiment  that  they  will  lead  him 
to  favor  the  damaged  complainant.  Writers, 

274 


The  Jury 

editors,  and  publishers  are  generally  excused  by 
the  defence  as  too  intelligent,  i.e.,  too  prone  to 
theoretic  arguments  as  distinguished  from  a 
"broad  view,"  which  from  the  prisoner's  stand- 
point means  one  including  every  sympathetic  rea- 
son that  can  be  suggested.  Artists  are  distrusted 
by  prosecutors  as  romantic  and  imaginative. 
Butchers,  coffin-makers,  sextons,  grave-diggers, 
undertakers,  and  dealers  in  electrical  supplies  are 
invariably  excused  for  obvious  reasons  by  the 
defendant  in  homicide  cases.  Liquor  dealers  are 
believed  to  be  prone  to  take  a  lenient  view  of  the 
shortcomings  of  humanity  in  general,  while  per- 
sons of  brisk,  incisive  manners  naturally  suggest 
heartlessness  to  the  cowering  defendant.  The 
writer  knows  an  assistant  who  will  not  try  a  case 
if  there  is  a  man  with  a  pompadour  on  the  jury, 
and  neither  prosecution  nor  defence  cares  for 
long-haired  jurors  of  the  "yarb  doctor"  variety, 
while  the  dapper  little  man  with  the  "dickey"  and 
red  necktie  is  invariably  excused  by  the  defence 
unless  the  defendant  be  a  woman. 

The  frivolous  character  of  these  rules  needs  no 
comment.  Almost  every  lawyer  and  every  prose- 
cutor believes  himself  to  be  a  past  master  in  the 
study  of  character  from  external  evidence,  and 
upon  the  most  trivial  and  unnatural  of  pretexts 
will  challenge  a  talesman  so  unfortunate  as  not 

275 


The  Prisoner  at  the  Bar 

to  suit  his  fancy.  Yet  when  all  is  done  and  when, 
after  the  most  exhaustive  examination  and  cross- 
examination  of  several  hundred  special  talesmen, 
wrenched  from  their  places  of  business  or  the 
bosoms  of  their  families,  twelve  men  have  been 
finally  selected  and  sworn,  it  is  probable  that  they 
are  in  no  respect  superior  to  the  first  twelve  who 
might  have  been  chosen. 

In  murder  cases  each  side  may  challenge  per- 
emptorily thirty  talesmen,  and  numerous  are  the 
legal  "jumps"  over  which  they  must  successfully 
ride  before  they  can  qualify  for  service.  Thus 
it  is  unusual  in  a  homicide  case  to  select  a  jury 
in  less  than  two  days,  and  in  some  instances  it 
has  taken  two  weeks.  On  the  other  hand,  equally 
satisfactory  juries  have  occasionally  been  selected 
in  such  cases  in  less  than  an  hour. 

The  general  futility  of  trying  to  secure  a  jury 
of  particular  capacity  or  intelligence,  or  one 
which  will  contain  no  juror  of  pronounced  idio- 
syncrasies, is  rather  well  illustrated  by  the  fol- 
lowing incident:  The  defendant's  counsel,  a 
man  of  considerable  repute  at  the  criminal  bar, 
had  spent  over  two  days  in  the  elaborate  selection 
of  a  jury.  It  had  taken  him  two  hours  to  get  a 
foreman  to  his  fancy,  but  at  last  he  had  accepted 
a  solid-looking  old  German  grocer.  After  a  trial 
lasting  several  days  the  jury  convicted  the  de- 

276 


The  Jury 

fendant  in  short  order,  greatly  to  the  disgust  of 
the  eminent  lawyer,  who  vented  his  indignation 
rather  loudly  in  the  presence  of  the  foreman  as 
he  was  leaving  the  box.  The  old  German  leaned 
over  good-naturedly  and  remarked,  pointing  to 
the  door  in  the  back  of  the  court-room  leading 

to  the  prison  pen:  "Veil,  Mr. ,  if  you  vant 

to  know  vat  I  tinks,  I  tells  you.  Ven  I  see  him 
come  in  through  dot  leetle  door  back  dere,  den  I 
knows  he's  guilty!'* 

This  lawyer  now  selects  a  jury  in  thirty  min- 
utes. 

Of  course,  some  examination  into  the  general 
qualifications  of  jurors  and  their  possible  bias  in 
the  case  is  imperative,  and  frequently  the  inter- 
position of  a  peremptory  challenge  is  not  only 
justifiable,  but  absolutely  necessary.  A  talesman 
will  sometimes  betray  by  an  inflection  of  his  voice 
a  sentiment  or  prejudice  which  his  words  deny, 
or  suggest  to  the  vigilant  counsel  for  the  defend- 
ant the  juror's  susceptibility  to  the  insidious  flat- 
tery of  the  prosecutor  in  making  him  a  part  of 
the  "organization  of  the  court." 

During  the  selection  of  a  jury  to  try  Moran, 
the  dynamiter,  in  March,  1906,  before  Judge 
Foster,  in  the  General  Sessions,  a  little  old  man 
took  the  stand  who  qualified  satisfactorily  as  a 
juror  so  far  as  the  prosecution  was  concerned. 

277 


The  Prisoner  at  the  Bar 

Daniel  F.  Cohalan,  attorney  for  the  defendant, 
then  took  him  in  hand  somewhat  as  follows: 

"Have  you  any  prejudice  against  a  man  ac- 
cused of  crime?" 

"I  have  not,"  replied  the  little  old  man. 

"Or  against  this  defendant?" 

"I  have  not." 

"Do  you  think  you  would  make  an  absolutely 
fair  and  impartial  juror?" 

"I  do." 

"Do  you  know  of  any  reason  to  the  contrary?" 

"I  do  not." 

Cohalan  turned  to  another  line  of  examination. 

"Do  you  read  the  papers?" 

"Yes.    Yes." 

"What  paper  do  you  read?*1 

"What  paper?" 

"Yes.  What  paper  do  you  read  in  the  morn- 
ing?" 

The  little  old  man  settled  himself  in  his  chair 
and,  eyeing  Cohalan  suspiciously,  replied: 

"I  read  the  Herald,  Times,  World,  Journal, 
Sun,  Tribune,  Press,  Staats  Zeitung,  Tele- 
graph  " 

"Stop!"  cried  Cohalan  feebly;  "that's  quite 
enough.  Don't  you  do  anything  but  read  the 
papers?" 

278 


The  Jury 

The  little  old  man  regarded  the  lawyer  scorn- 
fully. 

"I  spend  six  hours  a  day  keeping  myself  in- 
formed of  what  is  going  on.  I  flatter  myself  that 
there  is  nothing  in  the  whole  world  with  which  I 
am  not  fully  acquainted.  Knowledge  is  power!" 

Cohalan  collapsed  into  his  scat. 

"That  is  all.  You  are  excused.  You  know 
too  much  for  us!" 

As  the  little  old  man  shuffled  off  he  whispered 
to  the  prosecutor: 

"I'd  have  given  the twenty  years!" 

On  the  other  hand,  the  hyper-sensitiveness  of 
counsel  renders  it  easy  for  talesmen  to  escape 
who  do  not  wish  to  serve.  The  writer  knows 
an  estimable  man  who  is  regularly  drawn  about 
four  times  a  year  upon  the  special  jury.  He  has 
never  served.  His  method  is  as  follows:  Hav- 
ing taken  his  seat  upon  the  witness-stand  he  wrin- 
kles his  forehead  and  looks  fiercely  at  the  defend- 
ant. When  asked  if  he  has  any  objection  to  cap- 
ital punishment  he  thrusts  out  his  under  jaw  and 
exclaims:  "I  should  say  not!  I  think  hangings 
too  good  for  'em!"  In  reality  he  is  the  mildest, 
the  most  sympathetic  and  the  "easiest"  of  hu- 
man beings.  Another  observant  talesman  who 
appears  periodically  has  learned,  the  writer  be- 
lieves, his  trick  from  the  first.  His  stock  reply 

279 


The  Prisoner  at  the  Bar 

to  the  same  question  relative  to  capital  punish- 
ment is,  "I  have  not.  I  believe  in  the  Biblical 
injunction  of  'an  eye  for  an  eye,'  and  'a  tooth  for 
a  tooth,'  and,  'Whoso  sheddeth  man's  blood  by 
man  shall  his  blood  be  shed.'  '  Needless  to  say, 
he  leaves  the  stand  with  the  same  alacrity  as  the 
other.  Jurors  readily  enter  into  friendly  rela- 
tions with  the  prosecutor  and  defendant's  coun- 
sel, but  rarely  with  any  effect  upon  their  verdicts. 
In  the  first  trial  of  Mock  Duck,  a  Chinaman  in- 
dicted for  murder,  where  the  defence  interposed 
was  an  alibi,  to  wit,  that  the  prisoner  had  been 
buying  a  terrapin  in  Fulton  Market  at  the  time  of 
the  commission  of  the  crime  (whence  the  prose- 
cutor claimed  that  it  was  the  case  of  a  Mock 
Duck  with  a  mock  turtle  defence),  a  juryman  met 
the  defendant's  counsel  during  recess  and  told 
him  that  there  was  no  further  need  for  him  to 
call  any  more  witnesses  for  the  defendant,  as  the 
jury  "understood  the  situation  perfectly."  The 
lawyer  took  the  hint,  and  upon  the  reopening  of 
court  closed  his  case,  feeling  sure  of  an  acquittal 
or  at  least  of  a  disagreement.  When  the  jury 
had  retired  the  talesman  in  question  made  a  long 
speech  in  favor  of  murder  in  the  first  degree,  and 
refused  to  vote  for  any  other  crime.  Such  per- 
formances are  rare.  Of  course,  it  not  infre- 
quently occurs  that  a  juror  by  his  manner  of  ask- 

280 


The  Jury 

ing  questions  shows  plainly  his  state  of  mind. 
The  feelings  of  a  prosecutor  can  be  easily  imag- 
ined when  a  juror  turns  in  disgust  from  one  of 
the  People's  witnesses,  or  those  of  a  defendant's 
counsel  when  another  looking  towards  the  pris- 
oner, grinds  his  teeth  as  the  evidence  goes  in  and 
ejaculates,  "Brute!" 

The  jury  offers  a  fertile  field  for  the  study  of 
human  nature,  and  lawyers  and  prosecutors  learn 
to  look  regularly  for  certain  characters.  Of  these 
may  be  mentioned  the  too  officious  juror  who  asks 
hundreds  of  incompetent  and  irrelevant  questions 
to  which  the  lawyers  are  naturally  afraid  to  ob- 
ject, and  whose  inquisitiveness  has  to  be  curbed 
by  the  court  itself.  Such  a  juror  usually  shows 
much  conviction  one  way  or  the  other  in  the  early 
stages  of  the  case,  and  before  he  has  heard  the 
evidence.  Unfortunately  his  executive  abilities 
usually  fill  the  balance  of  the  jury  with  such  dis- 
gust that  to  have  a  juror  of  this  sort  on  one's 
side  is  more  of  a  misfortune  than  a  boon. 

Jurors  of  this  variety  frequently  at  inoppor- 
tune moments  interrupt  counsel  during  their  ad- 
dresses. In  one  case  an  aggressive  talesman 
broke  in  upon  a  burst  of  carefully  prepared  elo- 
quence with  the  brutal  interrogation:  "How 
about  the  knife?"  The  counsel  stopped,  bowed  to 
the  juror,  smiled,  and  said  calmly:  "Thank  you, 

281 


The  Prisoner  at  the  Bar 

Mr.  Smith,  I'm  glad  you  spoke  of  that.  I  am 
coming  to  it  in  a  moment."  The  juror,  satisfied, 
leaned  back  contentedly,  but  the  lawyer  has  not 
"come"  to  the  knife  yet. 

Practically  the  thing  most  desired  by  prosecu- 
tors and  lawyers  who  are  both  convinced  of  the 
justice  of  their  cause  is  homogeneity  of  some  sort 
in  the  jury-box.  Naturally  antagonistic  elements 
are  undesirable,  and  a  wise  selector  of  juries  will 
try  to  get  men  of  approximately  the  same  age, 
class  in  society,  nationality,  religion,  and  general 
character.  Of  course,  this  is  a  difficult  matter, 
but  without  a  friendly  and  helpful  spirit  among 
the  jurors  cases  will  result  frequently  in  disagree- 
ments. This  is  naturally  less  objectionable  to  the 
defendant  than  to  the  People,  for  ordinarily  it 
may  be  said  that  "two  disagreements  are  equiva- 
lent to  an  acquittal." 

The  common  idea  that  juries  are  prone  to  leave 
their  decisions  to  chance,  as  by  flipping  a  com,  or 
to  act  upon  impulse,  whim,  caprice,  or  from  a  de- 
sire to  get  away,  is  grossly  exaggerated. 

It  was  Pope  who  sang  in  the  "Rape  of  the 
Lock" : 

"The  hungry  judges  soon  the  sentence  sign, 
And  wretches  hang,  that  jurymen  may  dine." 

Unfortunately,  if  the  jury  is  hungry  or  exhausted 
and  anxious  to  dispose  of  the  case,  the  defendant 

282 


The  Jury 

invarfably  gets  the  benefit  of  it.  The  "wretches" 
don't  "hang,"  but  instead  are  turned  out  with  a 
rush.  Instances  of  verdicts  being  determined  by 
such  considerations  are  in  fact  rare. 

Much  of  the  seeming  misguidedness  of  juries 
in  criminal  cases  is  due,  just  as  it  is  due  in  civil 
cases,  to  the  idiosyncrasy,  or  the  avowed  purpose 
to  be  "agin*  the  government,"  of  a  single  tales- 
man. In  an  ideal  community,  no  matter  how 
many  persons  constituted  the  jury,  provided  the 
evidence  was  clear  one  way  or  the  other,  the  jury 
would  always  agree,  since  they  would  all  be  hon- 
est and  reasonable  men.  But  just  as  a  certain 
portion  of  our  population  is  mentally  unbalanced, 
anarchistic,  and  criminal,  so  will  be  a  certain  por- 
tion of  our  jurors.  In  addition  to  these  elements 
there  will  almost  invariably  be  found  some  men 
upon  every  panel  who  are  so  obstinate,  conceited, 
and  overbearing  as  to  be  totally  unfit  to  serve, 
either  from  the  point  of  view  of  the  people  or  the 
defence.  It  is  enough  for  one  of  these  recalci- 
trant gentlemen  that  eleven  other  human  being 
desire  something  else.  That  settles  it.  They 
shall  go  his  way  or  not  at  all. 

The  writer  believes,  therefore,  that  some  allow- 
ance should  be  made  for  the  single  lunatic  or 
anarchist  that  gets  himself  drawn  on  about  every 
fifth  jury,  for  if  he  once  be  empanelled  a  dis- 

283 


The  Prisoner  at  the  Bar 

agreement  will  inevitably  follow.  This  could  be 
accomplished  by  reducing  the  number  necessary 
for  a  verdict  to  eleven.*  Hundreds  of  juries 
have  been  "hung"  by  just  one  man.f  The  trou- 
ble, as  Professor  Thayer  points  out,  began  a  long, 
long  time  ago  in  a  case  reported  in  the  Book  of 
Assizes  in  1367. 

In  another  assize  before  the  same  justices  at 
Northampton,  the  assize  was  sworn.  They 
were  all  agreed  except  one,  who  would  not  agree 
with  the  eleven.  They  were  remanded  and  stayed 
there  all  that  day  and  the  next,  without  drink  or 
food.  Then  the  judges  asked  him  if  he  would 
agree  with  his  associates,  and  he  said  never, — 
he  would  die  in  prison  first.  Whereupon  they 

*Whatever  the  actual  origin  of  the  number  twelve  for  this 
purpose  there  certainly  lingered  in  olden  times  a  feeling  that 
it  had  been  a  sacred  or  foreordained  character,  and  in  Dun- 
comb's  Trials  per  pais,  the  following  illuminating  explanation  is 
to  be  found: 

"And  first  as  to  their  number  twelve:  and  this  number  is  no 
less  esteemed  by  our  law  than  by  Holy  Writ.  If  the  twelve 
apostles  on  their  twelve  thrones  must  try  us  in  our  eternal  state, 
good  reason  has  the  law  to  appoint  the  number  of  twelve  to 
try  our  temporal.  The  tribes  of  Israel  were  twelve,  the  patri- 
archs were  twelve,  and  Solomon's  officers  were  twelve.  There- 
fore not  only  matters  of  fact  were  tried  by  twelve,  but  of  ancient 
times  twelve  judges  were  to  try  matters  in  law,  in  the  Ex- 
chequer Chamber,  and  there  are  twelve  counsellors  of  state  for 
matters  of  state;  and  he  that  wageth  his  law  must  have  eleven 
others  with  him  who  believe  he  says  true.  And  the  law  is  so 
precise  in  this  number  of  twelve,  that  if  the  trial  be  by  more 
or  less,  it  is  a  mistrial."  (Cf.  Thayer's  Preliminary  Treatise, 
as  cited,  p.  90.) 

tCf.  "Criminal  Law  and  Its  Administration,"  by  Robert  Earl, 
2  Columbia  Law  Rev.  144. 

284 


The  Jury 

took  the  verdict  of  the  eleven  and  ordered  him  to 
prison,  and  thereupon  a  day  was  given  upon  this 
verdict  in  the  Common  Bench. 

.  .  .  And  afterwards  by  assent  of  all  the 
justices  it  was  declared  that  this  was  no  verdict. 
It  was  therefore  awarded  that  this  panel  be 
quashed  and  annulled,  and  that  he  who  was  in 
prison  be  enlarged,  and  that  the  plaintiff  sue  a 
new  venire  facias.  .  .  .  Note,  that  the  justices 
said  they  ought  to  have  taken  the  assize  with 
them  in  a  wagon  until  they  were  agreed" 

How  much  happier  would  not  only  the  eleven, 
but  the  twelfth  juror,  who  swore  he  would  "die 
first,"  have  been  if,  unanimity  not  being  required, 
they  could  comfortably  have  agreed  to  disagree 
and  yet  returned  to  court  and  rendered  a  verdict. 

A  jury  naturally  tends  to  lean  towards  the  de- 
fence— to  let  the  accused  go  if  they  can  conscien- 
tiously do  so;  to  find  somewhere  a  reasonable 
doubt  as  to  the  prisoner's  guilt — and  it  is  only 
because  the  cases  are  so  well  sifted  before  they 
come  to  trial  at  all,  and  the  wheat  separated  from 
the  chaff  (the  defendants  in  very  weak  cases  being 
frequently  discharged  on  the  recommendation  of 
the  district  attorney  himself),  that  the  percen- 
tage of  acquittals  is  not  vastly  greater. 

This  natural  feeling  of  sympathy  for  the  ac- 
cused makes  it  all  the  easier  for  juries  to  be 

285 


The  Prisoner  at  the  Bar 

affected  consciously  or  unconsciously  by  consid- 
erations they  have  sworn  to  disregard.  Then  if 
the  defendant  be  a  woman,  or  a  poor  man  with 
a  large  family,  or  his  crime  has  injured  no  one's 
purse,  or  restitution  has  been  made,  or  if  the 
offence  charged  is  merely  that  of  swindling  by 
means  of  false  representations  as  to  credit,  or  the 
defendant  is  very  young  or  very  old,  or  wears  a 
clean  collar,  or  has  an  atractive  personality,  or, 
better,  a  beautiful  wife,  he  is  turned  out  with  a 
cheer. 

"For  twelve  honest  men  have  decided  the  cause, 
Who  are  judges  alike  of  the  facts  and  the  laws." 

Yes,  the  jury  system  in  criminal  cases  is  a 
"practical  success" — and  it  "works  substantial 
justice."  It  works  the  exact  justice  that  we  want 
— the  exact  justice  that  we  deserve.  As  we  grow 
to  have  a  greater  respect  for  human  life  and  a 
higher  regard  for  law  and  honesty,  the  verdicts 
of  our  juries  will  continue  to  keep  pace  with  our 
condition.  Then  we  shall  want  something  bet- 
ter, and  we  shall  have  it.  The  day  will  come 
when  dishonesty  in  business  will  lead  to  the  ball 
and  chain  as  assuredly  as  arson  and  rape.  But 
the  time  is  not  yet. 

Then  juries  will  decide  the  issues  submitted  to 
them  upon  the  evidence  alone,  without  prejudice 
or  sympathy,  in  accordance  with  the  laws  which 

286 


The  Jury 

they  are  sworn  to  uphold,  without  truckling  to 
popular  sentiment  or  fear  of  newspaper  dis- 
approval; then  they  will  allow  the  judge  to  per- 
form the  functions  vested  in  him  by  law  without 
usurpation  by  their  verdicts;  and  will  utrue  de- 
liverance make"  between  the  People  on  the  one 
hand  and  the  defendant  on  the  other.  Then 
there  will  probably  be  no  need  for  juries — for 
there  will  be  no  criminals.* 

*Many  cases  result  in  mis-trials  <ming  to  the  sickness  or 
death  of  a  single  juror.  In  persecutions  which  it  can  be  fore- 
seen will  be  long  the  swearing  of  an  extra  juror  would  obviate 
this  difficulty.  Cf.  "Newspapers  and  the  Jury,"  Clarence  B. 
Smith,  17  Greenbag  223. 


187 


CHAPTER    XII 

THE  WITNESS 

THE  probative  value  of  all  honestly  given 
testimony  depends,  naturally,  first  upon  the 
witness's  original  capacity  to  observe;  second, 
upon  the  extent  to  which  his  memory  may  have 
played  him  false;  and  third,  upon  how  far  he 
really  means  exactly  what  he  says.  This  is  just 
as  true  of  testimony  in  cases  of  so-called  circum- 
stantial evidence  as  in  cases  where  the  evidence  is 
direct,  for  the  circumstances  themselves  must  be 
testified  to  by  witnesses  who  have  observed  them, 
and  the  authoritativeness  of  everything  these 
witnesses  have  to  say  must  lie  in  their  ability  to 
see,  remember,  and  describe  accurately  what  they 
have  seen. 

The  subject  of  perjury  is  so  distinct  and  far- 
reaching  that  it  deserves  separate  consideration. 
The  crime  is  easy  to  commit  and  difficult  to  estab- 
lish by  competent  proof,  for  it  is  a  highly  tech- 
nical offence  and  one  which  juries  seem  to  find  it 
easy  to  condone.  The  brother  or  friend  of  the 
accused  has  but  to  take  the  stand  and  swear  to  an 

288 


The  Witness 

alibi  and  lo !  he  is  free.  The  chance  of  detection 
is  small  in  comparison  with  the  immediate  benefit 
secured,  while  the  temptation  to  swear  falsely 
must,  at  least  in  the  case  of  the  immediate  family 
of  the  prisoner,  often  be  overwhelming.  Where 
convictions  for  perjury  are  secured  heavy  sen- 
tences are  invariably  imposed  and  a  wholesome 
apprehension  instilled  into  the  hearts  of  pros- 
pective witnesses,  yet  the  amount  of  deliberate 
false  swearing  in  our  criminal  courts  would  be 
inadequately  described  as  shocking.  To  estimate 
its  quantity  would  be  difficult  if  not  impossible, 
for  it  varies  with  the  character  of  the  case  and 
the  nature  of  the  defence.  When  the  latter  is 
an  alibi  the  entire  testimony  for  the  prisoner  is 
frequently  manufactured  out  of  whole  cloth,  and 
it  is  probably  not  very  wide  of  the  mark  to  say 
that  anywhere  from  a  quarter  to  seventy-five  per 
cent  of  the  testimony  offered  by  the  defendant's 
witnesses  upon  the  direct  point  in  issue  in  the 
ordinary  run  of  criminal  trials  is  perjured. 

Yet  a  careful  scrutiny  of  even  the  honestly 
given  testimony  in  such  cases  gives  rise  to  the 
belief  that  the  amount  of  strictly  accurate  evi- 
dence adduced  is  relatively  small,  so  small  as 
probably  to  stagger  the  credulity  of  the  layman 
and  to  give  the  lawyer  ground  for  reflection.  It 
must  be  borne  in  mind,  however,  that  this  refers 

289 


The  Prisoner  at  the  Bar 

to  criminal  trials  only  and  to  testimony  of  a  char- 
acter closely  relevant  to  the  issue. 

The  first  consideration  is  how  far  the  witness 
was  originally  capable  of  receiving  correct  im- 
pressions through  his  senses.  Naturally  this  de- 
pends almost  entirely  upon  his  physical  equip- 
ment and  the  keenness  and  accuracy  of  his  gen- 
eral observation,  both  of  which  arc  usually  evi- 
denced to  a  considerable  degree  by  his  appear- 
ance and  conduct  upon  the  stand. 

Children  are  proverbially  observant,  and  make 
remarkable  witnesses,  habitually  noticing  details 
which  inevitably  escape  the  attention  of  their 
elders ;  while  various  classes  of  persons  by  reason 
of  their  professional  requirements  are,  of  course, 
better  qualified  than  others  to  observe  certain 
facts  or  conditions,  as  a  gem  merchant  the  shape 
and  cutting  of  a  diamond,  or  a  doctor  the  physical 
condition  of  a  patient. 

Witnesses  are  often  honestly  mistaken,  how- 
ever, as  to  their  own  ability  to  observe  facts,  and 
will  unhesitatingly  testify  that  they  could  hear 
sounds  and  discern  objects  at  extraordinary  dis- 
tances. Lawyers  frequently  attempt  to  induce 
aged  or  infirm  witnesses  to  testify  that  they  could 
hear  plainly  what  was  said  by  the  defendant,  in 
an  ordinary  tone,  at  a  distance,  say,  of  forty  feet. 
The  lawyer  speaks  in  loud  and  distinct  tones  dur- 

290 


The  Witness 

ing  the  preliminary  examination,  and  then  grad- 
ually drops  his  voice  to  that  usually  employed  in 
speaking,  in  the  hope  that  the  witness  will  ask  him 
to  repeat  the  question.  This  ruse  usually  fails  by 
reason  of  the  fact  that  the  lawyer,  in  his  anxiety 
to  show  that  the  witness  could  not  possibly  hear 
the  distance  claimed,  lowers  his  voice  to  such  an 
extent  that  the  test  is  obviously  unfair. 

For  similar  reasons  counsel  often  call  upon 
such  witnesses  to  state  the  time  by  the  clock  which 
usually  hangs  upon  the  rear  wall  of  the  court- 
room. A  distinguished  but  conceited  advocate, 
not  long  ago,  after  securing  an  unqualified  state- 
ment from  an  octogenarian,  who  was  bravely  en- 
during cross-examination,  that  he  "saw  the  whole 
thing  as  if  it  had  occurred  ten  feet  away,"  sud- 
denly challenged  him  to  tell  the  time  by  the  clock 
referred  to.  The  lawyer  did  not  look  around 
himself,  as  he  had  done  so  about  half  an  hour 
before,  when  he  had  noticed  that  it  was  half 
after  eleven.  The  old  man  looked  at  the  clock 
and  replied,  after  a  pause,  "Half-past  eleven," 
upon  which  the  lawyer,  knowing  that  it  must  be 
nearly  twelve,  turned  to  the  jury  and  burst  into 
a  derisive  laugh,  exclaiming  sarcastically,  "That 
is  all"  and  threw  himself  back  in  his  seat  with  an 
air  of  having  finally  annihilated  the  entire  value 
of  the  witness's  testimony.  The  distinguisked 

291 


The  Prisoner  at  the  Bar 

practitioner,  however,  found  himself  laughirtg 
alone.  Presently  one  of  the  jury  chuckled,  and 
in  a  trice  the  whole  court-room  was  in  a  roar  at 
the  lawyer's  expense.  The  clock  had  stopped — 
at  half-past  eleven. 

The  professional  actor  upon  the  stage  presents 
the  illusion  of  nature  by  exaggerating  those  de- 
tails of  action  which  ordinarily  would  escape  the 
attention  of  the  observer. 

In  daily  life  we  are  quite  as  likely  as  not  to  be 
deceived  by  what  we  have  seen,  and  this  fact  is  so 
familiar  to  jurors  that  they  are  apt  to  distrust  wit- 
nesses who  profess  to  have  seen  much  of  compli- 
cated or  rapidly  conducted  transactions.  They 
want  the  main  facts  stated  convincingly.  The 
rest  can  take  care  of  themselves.  The  extraordi- 
nary extent  to  which  the  complex  development  of 
modern  life  has  dwarfed  our  powers  of  observa- 
tion is  noticeable  nowhere  more  markedly  than 
in  the  court-room.  Things  run  so  smoothly, 
transportation  facilities  are  so  perfect,  specializa- 
tion is  carried  to  so  high  a  degree,  and  our  whole 
existence  goes  on  so  much  indoors,  that  it  ceases 
to  be  a  matter  of  note  or  even  of  interest  that 
the  breakfast  is  properly  cooked  and  served,  that 
we  are  whisked  downtown  (a  little  matter  say  of 
five  miles)  in  ten  or  twelve  minutes,  that  we  are 
shot  up  to  our  offices  through  twenty  floors  in  an 

292 


The  Witness 

electric  elevator,  that  there  is  a  blizzard  or  a 
deluge,  or  that  part  of  Broadway  has  been  blown 
up  or  a  fifteen-story  building  fallen  down.  We 
pass  days  without  paying  the  remotest  attention 
to  the  weather,  and  forget  that  we  have  relations. 
Instead  of  walking  home  to  supper,  pausing  to 
talk  to  our  friends  by  the  way,  we  drop  into  the 
subway,  bury  ourselves  in  newspapers,  are 
vomited  forth  almost  without  our  knowing  it  at 
our  front  doorsteps.  The  multiplicity  of  detail 
deprives  us  of  either  the  desire  or  the  capacity  to 
observe,  and  we  cultivate  a  habit  of  not  observing 
lest  our  eyes  and  brains  be  overwhelmed  with 
fatigue.  Observation  has  ceased  to  be  necessary 
and  has  taken  its  place  among  the  lost  arts. 

Compare  the  old  days  when  a  Greek  could  go 
to  hear  the  "CEdipus,"  and  on  returning  home 
could  recount  practically  the  whole  of  it  from 
beginning  to  end  for  the  benefit  of  the  wife,  who 
was  not  allowed  to  go  herself,  or  even  the  com- 
paratively recent  period  when  the  funeral  ora- 
tion over  Alexander  Hamilton  could  be  reported 
in  the  "Evening  Post"  from  memory. 

Much  the  more  difficult  problem,  however,  is 
to  determine  how  far  the  witness  is  the  victim  of 
his  memory  and  is  unconsciously  confusing  fact 
with  imagination,  or  knowledge  with  belief.  It  is 
a  matter  of  common  experience  that  almost  all 

293 


The  Prisoner  at  the  Bar 

cases  are  stronger  in  court  than  they  give  the  im- 
pression of  being  when  the  witnesses  are  first 
examined  in  the  private  office.  Time  and  again, 
cases  which  in  the  beginning  have  seemed  hopeless 
to  prosecute  have  resulted  in  verdicts  of  convic- 
tion, and  defences  originally  so  fragile  as  to  ap- 
pear but  gossamer  have  returned  many  a  defend- 
ant to  his  despairing  family. 

The  reason  is  not  far  to  seek.  Witnesses  to 
the  events  leading  up  to  a  crime  are  acquainted 
with  a  thousand  details  which  are  as  vivid,  and 
probably  more  vivid,  to  them  than  the  occurrence 
in  regard  to  which  their  testimony  is  actually  de- 
sired. It  may  well  be  that  the  immaterial  facts 
are  the  only  ones  which  have  interested  them  at 
all,  while  their  knowledge  of  the  criminal  act  is 
relatively  slight.  For  example,  they  know,  of 
course,  that  they  were  in  the  saloon;  are  positive 
that  the  complainant  and  defendant  were  playing 
cards,  even  remembering  some  of  the  hands  dealt; 
are  sure  that  the  complainant  arose  and  walked 
away;  have  a  very  vivid  recollection  that  in  a  few 
moments  the  defendant  got  up  and  followed  him 
across  the  room;  are  pretty  clear ,  although  their 
attention  was  still  upon  the  game,  that  the  two 
men  had  an  argument;  and  have  a  strong  im- 
pression that  the  defendant  hit  the  complainant. 
In  point  of  fact,  their  evidence  is  really  of  far 

294 


The  Witness 

less  value,  if  of  any  at  all,  in  regard  to  the  actual 
striking  than  in  regard  to  the  events  leading  up 
to  it,  for  at  the  time  of  the  blow  their  attention 
was  being  given  less  to  the  participants  in  the 
quarrel  than  to  something  else.  Their  ideas  are 
in  truth  very  hazy  as  to  the  latter  part  of  the 
transaction.  However,  they  become  witnesses, 
pronouncing  themselves  ready  to  swear  that  they 
saw  the  blow  struck,  which  is  perhaps  the  fact. 
Their  evidence  is  practically  of  no  value  on  the 
question  of  justification  or  self-defence.  But 
finding,  on  being  examined,  that  their  testimony 
is  wanted  principally  on  that  aspect  of  the  case, 
they  naturally  tell  their  entire  story  as  if  they 
were  as  clear  in  their  own  minds  upon  one  part  of 
it  as  another.  Being  able  to  give  details  as  to  the 
earlier  aspect  of  the  quarrel,  they  feel  obliged  to 
be  equally  definite  as  to  all  of  it.  If  they  have 
an  idea  that  the  striking  was  without  excuse,  they 
gradually  imagine  details  to  fit  their  point  of 
view.  This  is  done  quite  unconsciously.  Before 
long  they  are  as  glib  with  their  description  of  the 
assault  as  they  are  about  the  game  of  cards. 
They  get  hazy  on  what  occurred  before,  and 
overwhelmingly  positive  as  to  what  occurred 
towards  and  at  the  last,  and  on  the  witness-stand 
swear  convincingly  that  they  saw  the  defendant 
strike  the  complainant,  exactly  how  he  did  it,  the 

295 


The  Prisoner  at  the  Bar 

words  he  said,  and  that  the  complainant  made 
no  offer  of  any  sort  to  strike  the  defendant. 
From  allowing  their  minds  to  dwell  on  their  own 
conception  of  what  must  have  occurred,  they  are 
soon  convinced  that  it  did  occur  in  that  way,  and 
their  account  flows  forth  with  a  circumstantiality 
that  carries  with  it  an  irresistible  impression  of 
veracity. 

The  witness  remembers  in  a  large  proportion 
of  cases  what  he  wants  to  remember,  or  believes 
occurred.  The  liar  with  his  prepared  lie  is  far 
less  dangerous  than  the  honest,  but  mistaken 
witness,  or  the  witness  who  draws  inadvertently 
upon  his  imagination.  Most  juries  instinctively 
know  a  liar  when  they  see  and  hear  one,  but  few 
of  them  can  determine  in  the  case  of  an  honestly 
intentioned  witness  how  much  of  his  evidence 
should  be  discarded  as  unreliable,  and  how  much 
accepted  as  true. 

The  greatest  difficulty  in  the  trial  of  jury  cases 
so  far  as  the  evidence  is  concerned  lies  in  the  falli- 
bility of  the  human  mind,  and  not  in  the  inventive 
genius  of  the  devil.  An  old  man  who  combines  a 
venerable  appearance  with  a  failing  memory  is 
the  witness  most  to  be  feared  by  either  side. 

In  a  recent  case  a  patriarch  of  some  eighty-five 
years  positively,  convincingly,  and  ultra-dramati- 
cally  identified  the  defendant  as  a  man  who  had 

296 


The  Witness 

knocked  him  down  and  robbed  him  of  a  ring. 
The  identification  was  so  perfect  that  on  the  evi- 
dence of  this  aged  witness  alone  the  jury  convicted 
the  defendant  after  but  a  few  moment's  delibera- 
tion. He  was  sentenced  to  ten  years  in  State's 
prison,  although  he  denied  vehemently  that  he 
had  ever  seen  the  complainant.  As  he  was  being 
led  from  the  bar,  the  real  criminal  arose  among 
the  audience  and  gave  himself  up,  stating  that  he 
could  not  sit  by  and  see  an  innocent  man  receive 
so  great  a  punishment.  The  inference  was,  that 
had  the  sentence  been  lighter  his  conscience 
would  not  have  pricked  him  sufficiently  to  sanc- 
tion his  act  of  self-sacrifice.  In  cross-examination 
lies  the  only  corrective  of  this  sort  of  specious 
testimony,  but  it  would  be  manifestly  inadequate 
to  prevent  injustice  in  such  an  instance  as  that 
just  described.  Juries  must  and  do  take  the  evi- 
dence of  most  well-intentioned  witnesses  with  a 
grain  of  salt. 

Both  men  and  women  habitually  testify  to  facts 
as  actually  occurring  on  a  specific  occasion  because 
they  occurred  on  most  occasions : 

Q.  "Did  your  husband  lock  the  door?" 

A.  "Of  course  he  did." 

Q.  "How  do  you  know?" 

A .  "He  always  locks  the  door." 

Witness  after  witness  will  take  the  stand  and 
297 


The  Prisoner  at  the  Bar 

testify  positively  that  certain  events  took  place, 
or  certain  acts  were  done,  when  in  point  of  fact  all 
they  can  really  swear  to  is  that  they  usually  took 
place  or  usually  were  done  : 

Q.  "Did  he  put  on  his  hat?" 

A.  "Certainly  he  did." 

Q.  "Did  you  see  him?" 

A.  "No,  but  he  must  have  put  on  his  hat  if  he 
went  out." 

And  the  probability  is  that  the  whole  question 
to  be  determined  was  whether  or  not  "he"  did  go 
out  or  stay  in. 

The  layman  chancing  to  listen  to  a  criminal 
trial  finds  himself  gasping  with  astonishment  at 
the  deluge  of  minute  facts  which  pour  from  the 
witnesses'  mouths  in  regard  to  the  happenings 
of  some  particular  day  a  year  or  so  before.  He 
knows  that  it  is  humanly  impossible  actually  to 
remember  any  such  facts,  even  had  they  occurred 
the  day  before  yesterday.  He  may  ask  himself 
what  he  did  that  very  morning  and  be  unable  to 
give  any  satisfactory  reply.  And  yet  the  jury 
believe  this  testimony,  and  because  the  witness 
swears  to  it  goes  upon  the  record  as  evidence  of 
actual  knowledge.  In  ninety-nine  cases  out  of  a 
hundred  counsel's  only  recourse  is  to  argue  to  the 
jury  that  such  a  memory  is  impossible.  But  in 
the  same  proportion  of  cases  the  jury  will  take  the 

298 


The  Witness 

oath  of  the  witness  against  the  lawyer's  reason- 
ing and  their  own  common-sense.  This  is  be- 
cause of  the  fictitious  value  given  to  the  witness's 
oath  by  talesmen  who  attach  little  significance  to 
their  own.  "He  swears  to  it,"  says  the  juryman, 
rubbing  his  forehead.  "Well,  he  must  remember 
it  or  he  wouldn't  swear  to  it!"  And  the  witness 
probably  thinks  he  does  remember  it. 

Yet  who  of  us  could  state  with  certainty  the 
guests  at  a  particular  dinner  six  months  ago?  Or 
the  transactions  of  a  morning  only  a  week  ago, 
with  any  accuracy  as  to  time?  What  the  witness 
frequently  does  is  to  discuss  the  matter  with  his 
friends  who  were  present  on  the  occasion  in 
question,  and,  as  it  were,  form  a  sort  of  "pool" 
of  their  common  recollections,  impressions,  and 
beliefs.  One  suggestion  corrects  or  modifies 
another  until  a  comparatively  lucid  and  logical 
story  is  evoked.  When  this  has  been  accom- 
plished the  witness  mentally  exclaims:  "Of 
course!  That  was  just  the  way  it  was!  Now  I 
remember  it  all!"  The  time  is  so  distant  that 
whatever  the  final  crystallization  of  the  matter 
may  be,  it  is  far  from  likely  that  it  will  there- 
after be  shown  to  be  inaccurate  by  any  piece  of 
evidence  which  will  present  itself  to  the  witness 
and  his  friends.  The  account  thus  developed  by 
mutual  questions  and  "refreshing"  of  each  other's 

299 


The  Prisoner  at  the  Bar 

recollection  becomes,  so  far  as  the  parties  to  it 
are  concerned,  the  fact.  The  witness  is  now  posi- 
tive that  he  did  and  said  exactly  so  and  so,  and 
nothing  will  swerve  him  from  it,  for  inherently 
there  is  nothing  in  the  story  or  its  make-up  that 
affords  any  reason  for  questioning  its  accuracy. 
This  story  repeated  from  time  to  time  becomes 
one  of  the  most  vivid  things  in  the  witness's  men- 
tal experience.  He  repeats  it  over  and  over,  is 
cross-examined  by  his  own  attorney  upon  it,  in- 
corporates it  in  an  affidavit  to  which  he  swears, 
and  when  he  takes  the  stand  recounts  these 
ancient  happenings  with  an  aggressiveness  and 
enthusiasm  that  bring  dismay  to  the  other  side. 

But  what  a  farce  to  call  this  recollection! 
What  is  this  circumstantial  romance  when  it 
comes  to  be  analyzed?  Jones,  a  friend  of  Smith 
the  prospective  witness,  is  anxious  to  establish 
an  alibi,  and  asks  Smith  if  he  doesn't  remember 
meeting  him  in  the  club  on  February  12,  two  years 
before.  Smith  has  no  recollection  of  it  at  all,  but 
Jones  says:  "Oh,  yes,  you  were  going  to  the 
theatre  with  Robinson."  Of  course,  if  Jones  is 
so  sure,  Smith  naturally  begins  to  think  it  is  prob- 
ably the  fact,  and  he  does  remember  vaguely  that 
he  and  Robinson  spent  an  evening  together.  So 
he  consults  his  diary  and  finds  it  recorded  there 
that  he  did  attend  the  theatre  on  the  day  in  ques- 

300 


The  Witness 

tion  with  Robinson.  He  does  not  remember  the 
play,  but  Robinson  recalls  that  it  was  "The 
Chinese  Honeymoon,"  and  believes  that  they 
dined  together  first  at  the  club.  Smith  now  thinks 
he  remembers  this  himself.  Then  Robinson  sug- 
gests that  they  probably  went  to  the  theatre  in  a 
cab.  They  look  in  a  file  of  old  papers  and  find 
that  it  was  raining.  That  settles  it — of  course, 
they  went  in  a  cab.  The  next  question  is  the 
hour.  They  have  no  recollection  of  being  late, 
so  they  must  have  arrived  on  time.  Well,  the 
paper  says  the  play  commenced  at  eight,  and  it 
takes  a  cab  about  twenty  minutes  to  get  from  the 
club  to  Daly's  Theatre,  so  it  is  reasonably  clear 
that  they  must  have  started  a  little  before  eight. 
Smith  unconsciously  is  persuaded  to  believe  that 
if  Jones  was  right  about  their  going  to  the  thea- 
tre, he  must  also  have  been  in  the  club  at  the  time 
he  says  he  was  there.  Both  he  and  Robinson 
recall  that  Jones  was  always  hanging  round  the 
club  two  years  ago,  and  as  neither  can  remember 
an  evening  when  he  wasn't  there,  they  decide  he 
must  have  been  there  that  night.  Robinson  has 
a  dim  recollection  that  they  had  a  drink  together. 
That  is  a  pretty  safe  guess  and  has  all  the  air  of 
verisimilitude.  In  an  hour  or  two  Smith  is  ready 
to  swear  positively  from  recollection  that  he 
dined  with  Robinson  at  the  club  on  February  12 

301 


The  Prisoner  at  the  Bar 

two  years  ago,  met  Jones,  had  a  drink  with  him, 
that  this  occurred  at  seven  fifty-five,  that  it  was 
raining,  that  they  took  a  cab,  etc.,  etc.  In  its 
elements  this  testimony  is  entirely  hearsay  upon 
the  only  vital  point,  i.e.,  Jones's  presence  in  the 
club  at  that  time,  and  the  immaterial  remainder 
is  made  up  of  equal  parts  of  diary,  newspaper, 
play-bill,  weather  report,  usual  custom,  reliance 
on  Robinson's  alleged  recollection,  and  belief  in 
Jones's  innocence.  He  has  practically  no  actual 
memory  of  the  facts  at  all,  and  the  only  thing  he 
really  does  remember  is  that  a  long  time  ago  he 
did  attend  some  theatre  with  Robinson. 

The  common  doctrine  of  what  is  known  as  "re- 
freshing the  memory"  in  actual  practice  is  notori- 
ously absurd.  Witnesses  who  have  made  memo- 
randa as  to  certain  facts,  or  even,  in  certain  cases, 
of  conversations,  and  who  have  no  independent 
recollection  thereof,  are  permitted  to  read  them 
for  the  purpose  of  "refreshing"  their  memories. 
Having  done  so,  they  are  then  asked  if  they  now 
have,  independently  of  the  paper,  any  recollection 
of  them.  In  ninety-nine  cases  out  of  a  hundred 
it  would  be  absolutely  impossible  for  them  really 
to  remember  anything  of  the  sort.  They  read  the 
entry,  know  it  is  probably  accurate,  and  are 
morally  convinced  that  the  fact  is  as  thereon 
stated.  They  answer  yes,  that  their  recollection 

302 


The  Witness 

has  been  refreshed  and  that  they  now  do  remem- 
ber, and  are  allowed  to  testify  to  the  fact  as  of 
their  own  knowledge.  In  most  instances  they  do 
not  clearly  understand  the  distinction  they  are 
called  upon  to  draw  between  actual  independent 
recollection  and  a  strong  belief  on  their  own  part 
that  the  fact  must  be  as  recorded.  It  is  the  ex- 
ceptional witness  indeed  who  makes  any  such  dis- 
tinction. 

There  are  also  many  cases  where  a  defendant 
has  been  put  in  jeopardy  because  some  one,  re- 
membering that  he  intended  to  do  an  act,  becomes 
convinced  that  he  has  done  so,  to  the  extent  of 
being  willing  to  swear  thereto.  No  better  illus- 
tration of  this  kind  of  error  could  be  given  than 
the  disappearance  of  the  famous  necklace  of  a 
prominent  resident  of  Newport  during  the  sum- 
mer of  1904.  There  lives  hardly  a  family  which 
has  not  frequently  had  such  an  experience. 
Some  night  the  husband  can't  find  his  pearl  shirt- 
studs.  He  knows  he  had  them  on  the  evening 
before.  The  hue  and  cry  is  raised.  Maledic- 
tions are  called  down  upon  Anna  or  Delia  or 
Nora.  But  the  studs  are  not  in  the  shirt.  Their 
owner  swears  he  left  them  there.  Then  Delia 
tremblingly  suggests  that  "master  dined  in  his 
ordinary  clothes  last  evening,"  and  he  realizes 
that  it  was  so  late  when  he  got  home  that  at  the 

303 


The  Prisoner  at  the  Bar 

last  minute  he  decided  not  to  change.  Amid 
great  excitement  the  studs  are  located  in  the 
bureau  drawer  where  they  belonged. 

The  final  question  to  be  determined  by  the 
juror  in  regard  to  the  testimony  of  any  witness 
is  how  far  the  latter  has  succeeded  in  conveying 
his  actual  recollections  through  the  medium  of 
speech  and  gesture.  This  necessarily  depends 
upon  a  variety  of  considerations.  Among  these 
are  his  familiarity  with  the  English  language; 
inadvertent  accentuation  of  wrong  words  or  of 
the  less  important  features  of  his  testimony;  his 
physical  condition,  which  in  nine  cases  out  of  ten 
is  one  of  extreme  nervousness  and  timidity,  if  not 
of  actual  fear;  and  a  hundred  other  trifling,  but, 
in  the  aggregate,  material  matters. 

The  most  effective  testimony  is  that  which  is 
given  with  what  the  jury  regard  as  the  evidences 
of  candor.  It  is  a  familiar  fact  that  the  surer  a 
person  is  of  anything,  particularly  among  the  la- 
boring classes,  the  more  loudly  will  he  assert  its 
truth.  This  is  so  well  known  to  the  jury  as  ordi- 
narily constituted  that  unless  testimony  is  given 
with  positiveness  it  might  as  well  not  be  given  at 
all.  Much  as  it  is  to  be  deprecated,  an  assertive 
lie  is  of  much  more  weight  with  a  jury  than  an 
anemic  statement  of  the  truth.  The  juror  im- 
agines himself  telling  the  story,  and  feels  that 

304 


The  Witness 

if  he  were  doing  so  and  his  testimony  were  true, 
he  would  be  so  convincing  that  the  jury  could  have 
no  doubt  about  it  at  all.  Ofttimes  a  witness  leads 
the  jury  to  suspect  that  he  is  a  liar  simply  because 
he  has  too  strong  a  sense  of  the  proprieties  of 
his  position  vehemently  to  resent  a  suggestion  of 
untruthfulness.  The  gentleman  who  mildly  re- 
plies "That  is  not  so"  to  a  challenge  of  his  verac- 
ity, makes  far  less  impression  on  the  jury  than 
the  coal-heaver  who  leans  forward  and  shakes  his 
fist  in  the  shyster's  face,  exclaiming:  "If  ye  said 
that  outside,  ye  little  spalpeen,  I'd  knock  yer  head 
off."  "Ah,"  say  the  jury,  "there's  a  man  for  you." 
Just  as  your  puritan  is  at  a  disadvantage  in  an  ale- 
house, and  your  dandy  in  a  mob,  so  are  the  hyper- 
conscientious  and  the  oversensitive  and  refined 
before  a  jury.  The  most  effective  witness  is  he 
whom  the  general  run  of  jurors  can  understand, 
who  speaks  their  own  language,  feels  about  the 
same  emotions,  and  is  not  so  morbidly  conscien- 
tious about  details  that  in  qualifying  testimony 
he  finds  himself  entangled  and  rendered  helpless 
in  his  own  refinements.  A  distinguished  lawyer 
testifying  in  a  recent  case  was  so  careful  to  qualify 
every  statement  and  refine  every  bit  of  his  evi- 
dence that  the  jury  took  the  word  of  a  perjured 
loafer  and  a  street-walker  in  preference.  This 
kind  of  thing  happens  again  and  again,  and  the 

305 


The  Prisoner  at  the  Bar 

wily  witness  who  thinks  himself  clever  in  appear- 
ing overdisinterested  is  "hoist  by  his  own  petard." 
The  jury  at  once  distrust  him.  They  feel  either 
that  he  is  making  it  all  up,  or  is  in  fact  not  sure  of 
his  evidence,  else,  they  argue,  he  would  be  more 
positive  in  giving  it. 

Most  witnesses  in  the  general  run  of  criminal 
cases  have  no  comprehension  of  the  meaning  of 
words  of  more  than  three  syllables.  It  is  hope- 
less to  make  use  of  even  such  modest  members  of 
our  national  vocabulary  as  "preceding,"  "subse- 
quent," "various,"  etc.  A  negro  when  asked  if 
certain  shots  were  simultaneous  replied: 

"Yas,  boss.  Dat's  it!  'Zactly  simultaneous! 
One  right  after  de  odder." 

The  ordinary  witness  usually  says  "minutes" 
when  he  means  "seconds."  He  will  testify  with- 
out hesitation  that  the  defendant  drew  his  re- 
volver and  immediately  shot  the  complainant, 
illustrating  on  the  stand  the  rapidity  of  the  move- 
ment. When  asked  how  long  it  took,  he  will 
answer:  "Oh,  about  two  or  three  minutes." 

A  proper  medium  in  which  to  converse  between 
the  lawyer  and  witness  is  sometimes  difficult  to 
find,  and  invariably  much  tact  is  required  in  han- 
dling witnesses  of  limited  education.  The  writer 
remembers  one  witness  who  was  completely  dis- 
concerted by  the  use  of  the  word  "cravat,"  and 

306 


The  Witness 

at  the  precise  moment  the  attorney  was  so  con- 
fused as  not  to  be  able  to  remember  any  synonym. 
The  Tenderloin  and  the  Bowery  have  a  vocabu- 
lary of  their  own  differing  somewhat  from  that 
of  beggars  and  professional  criminals.  The  lan- 
guage of  the  ordinary  policeman  is  a  polyglot  of 
all  three.  Popular  writers  on  the  "powers  that 
prey,"  and  dabblers  in  criminology  in  general, 
are  apt  to  become  the  victims  of  self-alleged  "ex- 
convicts"  and  "criminals"  who  are  anxious  to  sell 
unreliable  information  for  honest  liquor.  A  large 
part  of  the  lingo  in  realistic  treatises  on  prison 
life  and  "life  among  the  burglars,"  originates  in 
the  doped  imagination  of  whatever  fanciful  "re- 
formed" thief  happens  to  be  the  personal  gold 
mine  of  that  particular  author.  Thieves,  like 
any  distinct  class,  make  use  of  slang,  some  of 
which  is  peculiar  to  them  alone.  But  for  the 
most  part  the  "tough"  elements  in  the  community 
make  themselves  easily  understood  either  in  the 
office  or  on  the  witness-stand. 

Where  the  witness  speaks  a  foreign  language 
the  task  of  discovering  exactly  what  he  knows,  or 
even  what  he  actually  says,  is  herculean.  In  the 
first  place  interpreters,  as  a  rule,  give  the  sub- 
stance— as  they  understand  it — of  the  witness's 
testimony  rather  than  his  exact  words.  It  is  also 
practkally  impossible  to  cross-examine  through 

307 


The  Prisoner  at  the  Bar 

an  interpreter,  for  the  whole  psychological  sig- 
nificance of  the  answer  is  destroyed,  ample  oppor- 
tunity being  given  for  the  witness  to  collect  his 
wits  and  carefully  to  frame  his  reply.  One  could 
cross-examine  a  deaf-mute  by  means  of  the  finger 
alphabet  about  as  effectively  as  an  Italian  through 
a  court  interpreter,  who  probably  speaks  (defec- 
tively) seventeen  languages. 

The  reader  might  perhaps  conclude  from  what 
has  been  said  that  the  action  of  the  ordinary  jury 
in  most  cases  must  be  founded  simply  upon 
shrewd  guesswork.  To  a  certain  degree  this 
cannot  be  denied,  and  it  is  equally  true  that  all 
the  delicate  processes  of  the  human  mind,  and 
the  shadowy  presences  there  of  intent,  motive, 
and  recollection,  can  never  be  demonstrated  save 
by  inference.  Our  machinery  is  crude  indeed. 
Ofttimes  it  is  like  trying  to  dissect  a  butterfly 
with  a  pair  of  pincers,  and  the  wonder  is  that  the 
jury  are  able  to  get  at  the  truth  as  frequently  as 
they  do.  Hence  the  necessity  for  the  advocate 
to  assist  the  jury  and  remedy  their  ignorance  of 
the  psychology  of  testimony  by  his  own  observa- 
tion, knowledge,  and  experience.  With  the  jury 
keenly  alive  to  all  the  possibilities  of  error  in  the 
testimony  of  even  the  most  honest  of  witnesses, 
it  is  for  the  advocate,  the  psychologist  of  the  law, 
to  test  by  his  cross-examination  and  demonstrate 

308 


The  Witness 

in  his  summing  up  the  precise  probative  value  of 
the  evidence,  frequently  revealing,  below  an  ap- 
parently limpid  stream  of  truth,  a  turbid  bed  of 
conjecture,  assumption,  belief,  hearsay,  and  in- 
accuracy of  expression,  with  the  rank  weeds  of 
perjury  growing  just  beneath  the  surface. 


309 


CHAPTER  XIII 

THE  VERDICT 

THE  judge  having  delivered  his  charge,  and 
the  jury  having  gathered  up  their  collection 
of  miscellaneous  garments  and  retired  to  the  jury- 
room,  a  court  officer  claps  the  prisoner  upon  the 
shoulder  and  leads  him  away  to  the  prison  pen. 
Once  the  door  of  the  court-room  has  closed  be- 
hind him,  he  is  conducted  along  a  narrow  corri- 
dor to  the  head  of  a  flight  of  iron  steps  at  the 
foot  of  which  stands  a  keeper.  As  he  descends 
the  stairs  the  attendant  notifies  the  keeper  that 
the  defendant  is  on  his  way  down:  and  once  the 
latter  is  safely  below  the  keeper  shouts  "All 
right !"  to  the  officer  above,  who  returns  once 
more  to  his  duties  in  the  court-room.  Since  there 
is  little  danger  of  an  escape  the  officers  some- 
times become  a  trifle  lax  in  the  handling  of  pris- 
oners awaiting  the  verdict. 

An  incident  recently  occurred  which  shows  how 
much  care  is  necessary  in  guarding  a  defendant 
who  confidently  expects  a  verdict  of  conviction. 
At  the  conclusion  of  a  trial  for  grand  larceny  the 

310 


The  Verdict 

jury  went  out  and  the  prisoner  was  conducted  to 
the  head  of  the  stairs  leading  down  to  the  pen. 
The  court  officer  notified  the  keeper  when  the 
prisoner  was  about  half-way  down,  and  distinctly 
heard  the  latter  reply  "All  right  I"  He  there- 
upon departed.  The  keeper,  however,  had  not 
uttered  a  syllable  and  was  entirely  unaware  of 
the  return  of  the  defendant,  who,  being  some- 
thing of  a  ventriloquist,  had  answered  for  him, 
and  had  then  calmly  reascended  the  stairs,  passed 
through  the  corridor  to  another  court-room  where 
he  had  mingled  with  the  crowd,  and  later  had  had 
no  difficulty  in  making  his  escape  first  into  the 
main  corridor  and  thence  into  the  street.  When 
the  jury  presently  returned  and  the  prisoner  was 
sent  for,  his  flight  was  discovered.  The  court 
waited  patiently  while  the  pens,  corridors  and 
finally  the  entire  building  were  searched,  but  with- 
out disclosing  a  trace  of  the  prisoner.  Mean- 
while the  jury,  who  had  found  the  defendant 
guilty,  wondered  why  their  verdict  was  not  re- 
ceived. According  to  law,  however,  all  the  pro- 
ceedings incident  to  a  trial  for  felony  up  to  and 
including  the  rendition  of  the  verdict  must  take 
place  in  the  presence  of  the  prisoner,  and  in  this 
case  his  voluntary  absence  compelled  the  court  to 
declare  a  "mistrial."  When  it  became  evident 
that  the  defendant  was  unlikely  to  return,  tcr- 


The  Prisoner  at  the  Bar 

rible  was  the  humiliation  of  the  court  officers, 
who,  for  a  few  days,  lived  in  terror  of  losing 
their  official  heads,  if  not  of  being  imprisoned  and 
fined  for  contempt. 

The  prisoner's  wife,  however,  had  been  pres- 
ent throughout  the  trial  in  the  court-room,  al- 
though, as  his  escape  was  entirely  extemporane- 
ous, she  was  as  much  surprised  as  anybody  else 
at  his  departure.  After  the  discharge  of  the  jury 
several  detectives  followed  her  to  her  home  in 
Hoboken.  Late  in  the  evening  she  left  the  house 
in  response  to  a  message  and  met  her  husband  in 
a  deserted  part  of  the  city,  where  he  was  recap- 
tured. He  was  immediately  brought  back  to  New 
York  and  his  case  placed  once  more  on  trial ;  but 
this  time  he  pleaded  guilty.  From  a  dramatic 
point  of  view  it  is  to  be  regretted  that  the  jury 
at  the  first  trial  had  not  found  a  verdict  of  "not 
guilty." 

As  the  first  talesman  who  happens  to  be  se- 
lected for  the  jury  in  any  given  case  becomes  ipso 
facto  its  foreman,  amusing  incidents  sometimes 
occur  owing  to  his  inexperience.  Where  an  in- 
dictment contains  but  a  single  count,  as,  for  ex- 
ample, "receiving  stolen  goods,"  the  foreman's 
answer  to  the  clerk's  interrogation  of,  "Do  you 
find  the  prisoner  guilty  or  not  guilty,"  is,  of 
course,  simple  enough;  he  answers  "guilty"  or 

312 


The  Verdict 

"not  guilty,"  or  "not  guilty,  with  a  recommenda- 
tion to  the  mercy  of  the  court";  but  where  the 
indictment  contains  either  a  number  of  counts  set 
forth  separately,  or  the  crime  charged  is  of  such 
a  character  that  the  jury  may  find  in  a  lesser  de- 
gree, some  confusion  is  apt  to  result.  If,  for 
example,  a  defendant  is  being  tried  for  murder  in 
the  first  degree  the  court  is  obliged  to  submit, 
under  the  law,  not  only  murder  in  its  first  degree, 
but  the  lesser  crimes  of  murder  in  the  second  de- 
gree, manslaughter  in  the  first  degree,  manslaugh- 
ter in  the  second  degree  and  occasionally  assault 
in  one  or  more  degrees.  Sometimes  the  foreman 
forgets  entirely  what  he  was  going  to  say  and 
stands  staring,  open-mouthed,  until  the  clerk 
comes  to  his  assistance. 

In  a  case  where  the  court  charged  the  jury  that 
they  could  find  the  defendant  guilty  of  murder, 
manslaughter,  or  assault,  or  else  acquit  him  on 
the  ground  that  he  was  justified  in  taking  the  life 
of  the  deceased,  the  jury  retired  and  deliberated 
for  many  hours.  As  the  time  dragged  on  the  de- 
fendant became  convinced  that  he  was  to  be  con- 
victed. Late  at  night  the  jury  informed  the  court 
that  they  had  agreed  upon  a  verdict.  They  filed 
back  and  took  their  places  in  the  box.  The  de- 
fendant was  arraigned,  pale  with  apprehension. 
The  clerk  arose. 

313 


The  Prisoner  at  the  Bar 

"Gentlemen  of  the  jury,"  said  he*,  "have  you 
agreed  upon  a  verdict?" 

uWe  have,"  replied  the  foreman. 

"The  jury  will  rise,"  continued  the  clerk.  "The 
defendant  will  rise."  The  jury  and  prisoner 
arose. 

"Jurymen,  look  upon  the  prisoner.  Prisoner, 
look  upon  the  jury,"  continued  the  clerk,  and 
turning  to  the  foreman,  "How  say  you?  Do  you 
find  the  defendant  guilty  or  not  guilty?" 

"Guilty,"  stammered  the  foreman. 

The  defendant  uttered  a  loud  groan  and  col- 
lapsed into  the  arms  of  the  court  attendant  be- 
side him. 

"Of  justifiable  homicide,"  hastily  added  the  in- 
experienced foreman.  In  spite  of  the  laughter  of 
the  rest  of  the  jurymen  and  the  smiles  of  the 
court  it  took  some  moments  to  convince  the  un- 
nerved prisoner  that  he  was  not  to  be  electro- 
cuted. 

In  a  recent  case  the  jury  returned  a  verdict  of 
"Pretty  nearly  guilty!" 

A  very  considerable  proportion  of  jury  trials 
in  criminal  cases  result  in  disagreements.  The 
question  of  reasonable  doubt  is  always  a  trouble- 
some one,  and  even  where  all  the  jury  believe  the 
defendant  guilty,  as  likely  as  not  half  of  them 
will  not  think  that  they  are  convinced  beyond 

3H 


The  Verdict 

what  they  regard  as  a  reasonable  doubt.  On  this 
account  many  jurors  are  of  the  opinion  that  what 
is  known  as  a  Scotch  verdict,  or  a  verdict  of  "Not 
proven,"  should  be  allowed.  The  writer  has 
been  informed  on  good  authority  that  in  one  of 
the  recent  trials  of  Nan  Patterson  eleven  of  the 
twelve  jurymen  believed  her  guilty,  but  that  only 
six  of  them  were  of  the  opinion  that  they  were 
so  convinced  beyond  a  reasonable  doubt.  Had 
the  Scotch  verdict  been  permissible  it  would  prob- 
ably have  been  rendered  in  this  case.  Inasmuch 
as  the  ordinary  American  petit  jury  are  apt  to  go 
outside  the  evidence  and  to  decide  the  issue,  in 
some  degree  at  least,  on  evidence  which  properly 
they  should  not  consider  at  all,  no  further  loop- 
holes of  escape  from  rendering  a  verdict  one  way 
or  the  other  should  be  afforded  them.  Had  we 
the  Scotch  verdict,  instead  of  disagreeing  and  giv- 
ing the  prosecution  the  opportunity  to  try  the 
defendant  over  again,  juries  would  probably 
make  use  of  it  in  all  cases  where  they  disliked  to 
render  a  verdict  in  accordance  with  the  evidence. 
Juries  frequently  incorporate  with  the  verdict 
of  guilty  the  words  "with  a  recommendation  to 
mercy."  Of  course  this  is  no  part  of  the  verdict 
and  has  no  legal  effect  whatever.  It  is  merely 
a  formal  expression  of  opinion  that  in  the  eyes  of 
the  jury  it  would  be  well  for  the  court  to  treat 

315 


The  Prisoner  at  the  Bar 

the  defendant  with  leniency.  The  judge  usually 
comments  upon  this  recommendation  and  inti- 
mates that  he  will  give  it  consideration  in  im- 
posing sentence.  It  is  not  likely,  however,  that 
in  any  case  which  has  appealed  to  the  sympathies 
of  the  jury  the  court  will  not  be  equally  moved. 
In  point  of  fact,  did  juries  fix  the  sentence  in 
cases  where  they  found  the  defendant  guilty  it  is 
exceedingly  probable  that  they  would  be  much 
more  severe  than  the  bench.  Most  jurors,  how- 
ever, are  under  the  impression  that  ua  recom- 
mendation to  mercy"  is  an  integral  part  of  their 
verdict  and  it  frequently  does  yeoman's  service  by 
inducing  a  juror  or  two  who  have  a  lingering 
feeling  that  perhaps  the  crime  has  not  been  as 
fully  proven  as  it  might  have  been,  or  that  maybe 
the  defendant  is  not  guilty  after  all  or  should 
be  given  another  chance,  to  agree  with  the  ma- 
jority of  their  fellows.  The  writer  had  one  panel 
of  jurors  in  the  General  Sessions  which,  having 
returned  a  verdict  of  guilty  "with  a  recommenda- 
tion to  mercy"  in  the  first  case  tried  during  the 
month,  affixed  the  same  recommendation  to  each 
verdict  which  they  rendered  thereafter.  It  is  his 
impression  that  they  convicted  every  prisoner  who 
came  before  them,  so  that  the  recommendation 
must  in  many  cases  have  seemed  to  the  hapless 
defendant  but  a  hollow  mockery.  There  is  even 

316 


The  Verdict 

a  traditional  case  where  a  jury  in  a  murder  trial 
found  the  defendant  guilty  of  murder  in  the  first 
degree,  "with  a  strong  recommendation  to  the 
mercy  of  the  court." 

Verdicts  of  murder  in  the  first  degree  are  com- 
paratively rare  and  are,  practically,  only  to  be 
expected  when  the  circumstances  surrounding  the 
crime  are  peculiarly  atrocious.  It  is  also  a  well- 
known  fact  that  juries  rarely  find  a  verdict  in  a 
degree  of  crime  higher  than  the  one  for  which 
the  majority  vote  upon  the  first  ballot.  For  ex- 
ample, if  on  the  first  ballot  the  jury  stands  five 
for  murder  in  the  first  degree,  six  for  murder  in 
the  second  degree  and  one  for  manslaughter  only 
a  miracle  could  account  for  a  final  verdict  of  mur- 
der in  the  first  degree.  In  other  words,  a  jury 
will  almost  never  work  up  their  verdict,  argu- 
ment invariably  tending  to  work  them  down  to 
a  lesser  degree.  Most  cases  of  what  is  techni- 
cally murder  in  the  first  degree  result  in  verdicts 
of  murder  in  the  second  degree,  and  most  cases 
of  murder  in  the  second  degree  result  in  verdicts 
of  manslaughter. 

The  jury  having  rendered  a  verdict  of  convic- 
tion, say  of  murder  in  the  first  degree,  there  re- 
mains to  counsel  but  one  last  act  which  he  can 
perform  in  his  client's  behalf,  namely,  to  demand 
that  the  jury  be  polled.  This  must  be  done  upon 

317 


The  Prisoner  at  the  Bar 

the  requirement  of  either  the  defendant  or  the 
People,  in  which  case,   "they  must  be  severally 
asked  whether  it  is  their  verdict;  and  if  any  one 
answer  in  the  negative,  the  jury  must  be  sent  out 
for  further  deliberation."    The  writer  has  never 
heard  of  a  jury  which,  on  being  polled,  showed 
a  disagreement.     It  is  not  unusual,  however,  as 
the  roll  is  called  to  see  various  members  of  the 
jury  look  apprehensively  towards  one   of  their 
number  who  has  evidently  put  up  in  the  jury- 
room  a  hard  fight  for  a  lesser  degree  and  may  be 
"of  the  same  opinion  still."    A  prosecutor  always 
breathes  more  freely  when  the  ordeal  is  over,  and 
probably    experiences    during    the    process    very 
much  the  same  kind  of  emotion  as  that  felt  by 
the  bridegroom  at  the  altar  as  he  listens  appre- 
hensively at  the  conclusion  of  the  clergyman's  an- 
nouncement that  "if  any  one  has  any  just  cause, 
etc.,  let  him  now  speak  or  forever  hold  his  peace." 
Defendants  who  are  convicted  rarely  show  any 
emotion  when  receivmg  the  verdict.     This  is  of 
course  to  be  expected,  as  the  defendant,  if  guilty, 
has  probably  been  anticipating  that  he  will  be  so 
found  by  the  jury,  and  has  steeled  himself  for  the 
occasion,   while   an   innocent  man   is   practically 
never  convicted.     Hundreds  of  defendants,  how- 
ever, who  confidently  expect  to  be  convicted,  are 
acquitted  through  the  leniency  of  the  jury.   Their 

318 


The  Verdict 

exclamations  of  gratification  and  joy  upon  such  oc- 
casions are  frequently  most  amusing.  Such  a  de- 
fendant not  seldom  thanks  the  court  and  the  jury 
for  their  kindness,  and  in  some  cases  his  thanks 
are  certainly  due  to  those  who  have  violated  the 
letter  and  spirit  of  their  oaths  in  acquitting  him. 
The  writer  recalls  one  old  colored  mammy  who, 
on  being  acquitted  of  stealing  some  wash  which 
had  been  confided  to  her  care,  curtsied  in  all  di- 
rections and  remarked,  "Ah,  t'anks  your  honor, 
an'  Ah  t'anks  your  Honors,  gentlemen  ob  de  jury, 
one  an'  all."  An  Irishman,  who  had  been  but  a 
few  weeks  in  this  country,  and  who  had  been  ac- 
quitted on  the  charge  of  stealing  a  truck  and 
horse  which  had  been  left  in  his  charge,  on  learn- 
ing of  his  acquittal  invited  the  jury  collectively 
in  a  loud  voice  to  come  across  the  street  and  have 
a  drink. 

Before  the  jury  is  discharged,  however,  and 
the  prisoner  remanded  to  the  Tombs  for  sentence, 
he  is  required  to  answer  certain  questions  relative 
to  his  age,  parentage,  education,  previous  convic- 
tions, etc.  If  the  spectator  is  fortunate  enough 
to  be  able  to  forget  the  solemnity  of  what  has 
taken  place,  he  may  well  be  entertained,  not  only 
at  the  answers  given  by  the  defendant,  but  at  the 
method  of  conducting  the  examination  by  the 
court  officer.  The  clerk  takes  the  indictment  and, 

319 


The  Prisoner  at  the  Bar 

with  a  large  rubber  die,  stamps  upon  it  the  state- 
ment that  the  defendant,  on  being  arraigned, 
made  answer  to  the  questions  put  to  him,  as  fol- 
lows : 


Counsel  Assigned    

Sex    

Age 

Nativity    

Residence  

Occupation    

Married  or  Single  

Education     

Religious  Instruction 

Parents    Living    

Temperate  or  Intemperate 
Before  Convicted     


Of  course,  the  court  officer  who  repeats  the 
prisoner's  answers  to  the  clerk  is  usually  so 
familiar  with  the  order  of  the  questions  as  to 
render  any  vocal  action  upon  the  part  of  the  clerk 
unnecessary.  The  officer  stands  by  the  prisoner 
and,  leaning  over,  asks  in  a  low  tone  how  old  he 
is,  if  his  parents  are  living,  if  he  is  addicted  to 
the  use  of  liquor,  if  he  has  had  any  religious  in- 
struction, or  if  he  has  been  previously  convicted 
of  crime.  It  is  really  the  officer  to  whom  the  de- 
fendant makes  his  replies,  the  former  repeating 
them  in  a  loud  voice  to  the  clerk.  In  some  courts 
the  clerk  does  not  put  the  questions  at  all,  but 
the  officer  merely  gives  in  their  order  the  answers 
of  the  defendant.  For  example,  in  Part  II,  upon 
the  rendition  of  a  verdict  one  will  see  Mr.  Samuel 

320 


The  Verdict 

Wolff,  the  clerk,  stamp  the  indictment,  dip  his  pen 
in  the  ink,  turn  to  the  officer  of  the  court  and  say, 
"All  ready?" 

The  officer  answers,  "Yes." 

A  subdued  conversation  then  takes  place  be- 
tween the  prisoner  and  the  officer,  who  raises  his 
voice  and  answers: 

"Twenty-nine;  —  U.  S.  —  No; None; 

—  Single  -  -  Yes;  —  No.— "  All  of  which  an- 
swers are  properly  recorded  opposite  the  appro- 
priate questions  upon  the  indictment. 

All  this  is  a  little  startling  to  the  juror  who  has 
rendered  his  first  verdict.  He  has  no  idea  at  all 
of  what  is  going  on.  The  officer  returns,  if  pos- 
sible, a  categorical  reply  to  each  question,  but  fre- 
quently prisoners  make  statements  which  are  of 
course  irrelevant  in  character  and  are  not  incor- 
porated in  the  answer.  At  times  it  requires  quite 
a  little  cross-examining  on  the  part  of  the  officer 
to  determine  whether  or  not  the  defendant  is  tem- 
perate or  intemperate,  or  whether  he  has  really 
ever  been  convicted  of  crime  theretofore.  Any 
one  who  could  overhear  these  colloquies  would  be 
well  repaid  for  his  trouble.  The  writer  knows  of 
one  officer  of  a  somewhat  waggish  disposition 
who,  when  he  approaches  the  interrogation  di- 
rected towards  the  prisoner's  usual  habits,  first 
puts  the  question  in  its  proper  form: 

321 


The  Prisoner  at  the  Bar 

"Are  you  temperate  or  intemperate?" 

The  prisoner,  who  perhaps  does  not  under- 
stand these  terms,  or,  at  any  rate,  is  a  little  doubt- 
ful himself  as  to  his  usual  conditions,  stammers 
and  hesitates.  The  officer,  dropping  his  voice, 
remarks,  confidentially : 

"Say,  do  you  ever  take  a  drink?" 

"Sure,"  says  the  defendant,  without  hesitation. 

"Moderate"  shouts  the  officer  to  the  clerk. 

A  certain  element  of  humor  enters  into  the 
situation  when  a  defendant  convicted  of  bigamy 
is  asked  if  he  is  married.  The  answer  "Yes"  is 
generally  accompanied  by  an  irrepressible  grin. 

There  used  to  be  an  old  court  officer  in  one  of 
the  parts  of  the  General  Sessions  a  few  years  ago 
who  was  a  loyal  son  of  Old  Erin  and  a  devout 
member  of  the  Roman  Church. 

On  one  occasion,  a  defendant  having  been 
found  guilty  he  was  arraigned  at  the  bar  for 
the  purpose  of  having  his  pedigree  taken,  old 
Flaherty  officiating.  The  conversation  which  en- 
sued may  be  worth  preservation. 

Flaherty  to  Defendant:  "Say,  me  friend, 
where  was  ye  born?" 

Defendant  to  Flaherty:     "Lowell,  Mass." 

Flaherty  to  Clerk:     "Lowell,  Mass." 

Flaherty  to  Defendant :  "Where  do  yez  hang 
out?" 

322 


The  Verdict 

Defendant  •     "Nowhere." 

Flaherty  to  Clerk:    "Ain't  got  none" 

Flaherty  to  Defendant:  "Phat  do  yez  do  fer 
alivin'?" 

Defendant:     "NothinV 

Flaherty  to  Clerk:     "Ain't  got  none." 

Flaherty  to  Defendant:     uAre  ye  married?" 

Defendant:     "No—  thank  God." 

Flaherty  to  Clerk:  "He  says  'No,  thank 
God!'  " 

Flaherty  to  Defendant:  "Ever  receive  any 
previous  religious  instruction?" 

Defendant:     "How's  that?" 

Flaherty  to  Defendant:  'That's  yer  re- 
ligion?" 

Defendant:  "Don't  believe  in  nothinV 

Flaherty  to  Clerk  (loudly):  "PROTEST- 
ANT!" 

For  a  convict  to  give  under  oath  false  answers 
to  the  questions  thus  put  to  him  is,  of  course, 
perjury.  It  is  frequently  of  no  small  importance 
for  a  prisoner  to  conceal  his  identity,  or  at  least 
his  record.  But  if  a  Bible  is  thrust  into  his  right 
hand  he  is  loath  to  put  himself  within  the  statute 
governing  false  swearing,  for  the  chances  are 
all  in  favor  of  his  being  found  out,  in  which  case 
his  punishment  will  be  severe.  The  writer  re- 

323 


The  Prisoner  at  the  Bar 

calls  a  dramatic  incident  of  a  man  who  en- 
deavored to  prevent  his  past  offences  coming  to 
the  knowledge  of  the  judge.  He  bore,  however, 
all  the  ear-marks  of  an  ex-convict,  and  the  court 
became  suspicious  that  all  was  not  right.  He  had 
just  been  convicted  of  stealing  a  purse.  The  jury 
had  remained  out  until  eleven  o'clock  at  night 
and  the  court-room  was  practically  deserted.  The 
prisoner  was  placed  before  the  bar.  We  will 
call  him  James  Graham.  The  clerk  put  the  usual 
questions  and  then  inquired: 

"Have  you  ever  been  convicted  before?" 

"No,"  answered  the  prisoner  in  a  low  voice. 

There  was  a  long  pause,  and  then  the  judge, 
looking  down  intently  from  the  bench,  said: 

"Graham,  is  that  the  truth  ?" 

"Yes,  sir,"  replied  the  prisoner. 

"Are  you  quite  sure?"  insisted  the  court. 

"Yes,  sir." 

"Swear  him!"  ordered  the  judge. 

The  officer  started  to  place  the  Bible  in  Gra- 
ham's hand,  but  he  refused  to  take  it. 

"No,  no,  I  can't!"  he  whispered.     "I  can't — 
I — I — it's  no  use!"  he  added. 

"When  were  you  convicted?" 

"I  served  six  months  for  petty  larceny  about 
five  years  ago." 

"Is  that  all?" 

324 


The  Verdict 

"Yes,  sir." 

"Are  you  sure?" 

"Yes,  sir." 

"Quite  sure?    Think  again." 

"Yes,  sir." 

"Swear  him!" 

Again  the  book  was  placed  in  his  hand  and 
again  it  was  declined. 

"I  served  three  years  in  Charlestown  for  lar- 
ceny, and  was  discharged  two  months  ago." 

"Is  that  all?" 

"O  God!  Isn't  that  enough?"  suddenly 
groaned  the  prisoner,  breaking  down  completely. 
"No,  sir,  it  isn't  all !  It's  always  been  the  same 
old  story!  Concord,  Joliet,  Elmira,  Springfield, 
Sing  Sing,  Charlestown — Yes,  six  times.  Twelve 
years ! — I'm  a  jail  bird!" 

Before  rendering  a  verdict  the  members  of 
almost  every  jury  take  the  opportunity  in  the 
jury-room  to  stretch  their  legs  and  satisfy  their 
craving  to  smoke.  Juries  rarely  return  in  less 
time  than  it  takes  to  burn  a  cigar.  While  this 
may  torture  the  prisoner  it  would  seem  a  fairly 
earned  perquisite  on  the  part  of  his  judges. 
Some  jurors  are  instinctively,  and  a  few  are  actu- 
ally lawyers.  These  rarely  add  much  to  the  gen% 
eral  usefulness  of  the  panel.  Jurymen  not  in- 
frequently seize  the  opportunity  to  display  their 

325 


The  Prisoner  at  the  Bar 

oratorical  ability,  since  their  audience  cannot  get 
away  and  must  perforce  hear  them  out.  The 
writer  recalls  one  instance  where  in  a  well-known 
extortion  case  an  enthusiastic  talesman  made  a 
digest  of  the  speeches  of  counsel  for  the  defence 
and  for  the  prosecution  and  then  prepared  a  long 
harangue  of  his  own  which  he  committed  to  mem- 
ory. When  the  jury  were  safely  locked  into  their 
council  chamber  this  self-sacrificing  gentleman 
arose  and  began,  "In  this  case  the  defence  claims, 
thus  and  so."  After  he  had  repeated  practically 
in  toto  the  argument  of  the  defence  he  got  his 
second  wind  and  continued,  "On  the  other  hand, 
the  People  assert,  thus  and  so."  At  the  end  of 
about  an  hour  he  had  reached  his  own  humble 
views  of  the  case,  which  he  expanded  at  great 
length,  ending  with  a  peroration  in  which  the 
great  American  eagle  could  be  heard  screaming 
all  the  way  into  the  court-room.  The  jury,  prob- 
ably out  of  sheer  fatigue,  took  but  a  single  vote 
and  found  the  defendant  guilty.  The  orator 
to  this  day  claims  that  he  "did  it." 

While  the  deliberations  of  the  jury  are  theo- 
retically secret,  the  rooms  in  which  they  are  con- 
fined are  often  so  located  with  reference  to  cor- 
ridors, retiring  rooms,  etc.,  that  officers  on  duty, 
turnkeys,  and  other  persons  are  occasionally  made 
involuntary  eavesdroppers.  It  is  said  that  in 

326 


The  Verdict 

other  and  more  barbarous  times  interested  partie* 
would  lurk  near  by  in  order  to  get  an  idea  of  how 
the  wind  was  blowing.  There  is  a  story  for 
which  the  writer  assumes  no  responsibility  that  ten 
or  fifteen  years  ago  a  noted  prosecutor  was  ac- 
customed to  follow  the  jury  out,  climb  upon  a  lad- 
der, and  listen  at  the  transom  to  their  arguments 
and  comments;  and  there  is  also  a  report,  which 
perhaps  is  but  a  fable,  that  there  was  a  knot-hole 
in  the  jury-room  of  the  old  "Brownstone"  build- 
ing from  which  the  plug  was  regularly  removed 
to  allow  of  similar  surreptitious  observations. 
The  rumors  which  come  from  the  direction  of  the 
jury-room  are  quite  as  apt  to  be  incorrect  as  ac- 
curate, and  neither  prosecutor  nor  prisoner  really 
knows  what  is  the  result  of  the  jury's  delibera- 
tions until  the  foreman's  word  ends  the  suspense 
Many  strange  and  amusing  stories  are  told  of 
how  certain  historic  verdicts  in  criminal  cases 
were  reached.  Perhaps  the  most  famous  is  that 
of  the  trial  of  the  first  indictment  which  followed 
the  robbery  of  the  Manhattan  Bank.  The  case 
was  tried  before  Judge  Cowing  in  the  General 
Sessions,  and  after  a  speedy,  but  conclusive,  trial 
the  jury  retired.  A  vote,  which  was  immediately 
taken,  showed  that  they  stood  eleven  to  one  for 
conviction.  The  twelfth  juror  was  obstinate  and 
no  progress  whatever  was  made  by  the  others. 

327 


The  Prisoner  at  the  Bar 

The  situation  remained  unchanged  during  the 
night  and  up  to  twelve  o'clock  of  the  next  day, 
which  happened  to  be  a  Saturday.  At  that  hour 
Judge  Cowing  sent  word  that  he  was  going  down- 
town and  would  not  return  until  two  o'clock.  In 
some  way  the  jury  got  the  idea  that  the  judge  in- 
tended to  lock  them  up  until  Monday  if  they  did 
not  agree.  They  accordingly  asked  for  five  min- 
utes more  before  the  judge  left  the  building. 
This  was  granted  and  at  the  end  of  that  time 
they  announced  that  they  had  agreed.  Into  court 
they  filed. 

"Have  you  agreed  upon  a  verdict?"  asked  the 
clerk. 

"We  have,"  replied  the  foreman. 

"How  say  you?  Do  you  find  the  defendant 
guilty  or  not  guilty?" 

"Not  guilty"  answered  the  foreman  defiantly. 
The  defendant,  who  was  as  guilty  a  man  as  ever 
was  brought  to  the  bar  of  justice,  almost  col- 
lapsed from  astonishment,  and  the  judge  gave 
the  jury  a  frank  piece  of  his  mind  in  no  uncer- 
tain language.  Rather  than  suffer  any  further 
inconvenience  this  high-minded  jury  had  simply 
faced  about  and  voted  to  acquit. 

There  are  some  cases,  however,  where  one 
strong-minded  and  able  juryman  has  swung  the 
whole  body  to  his  way  of  thinking  after  a  vote  of 

328 


The  Verdict 

eleven  against  him,  and  this  is  as  true  of  verdicts 
of  conviction  as  of  acquittal.  Few  jurors,  how- 
ever, can,  as  a  rule  stand  out  against  the  asser- 
tions and  incriminations  of  their  fellows.  Most 
of  them  are  easy-going  and  like  to  be  led  by  a 
strong  hand.  A  positive  stand  taken  by  a  fellow 
talesman  will  often  bring  them  to  his  views  when 
they  are  really  inclined  to  be  in  doubt.  If  the 
flag  is  raised  they  will  quickly  rally  to  it,  but  they 
will  never  reach  the  point  where  they  would  be 
willing  to  elevate  it  of  their  own  accord.  An  ex- 
perienced and  highly  intelligent  juryman  once  told 
the  writer  that  the  first  thing  he  always  did  when 
the  jury  had  retired,  whether  he  was  the  fore- 
man or  not,  was  to  stand  up  at  the  end  of  the  table 
and  say: 

"Gentlemen,  this  man  is  guilty  [or  innocent,  as 
the  case  might  be]  !  The  sooner  we  say  so  the 
better,  but  my  mind  is  made  up." 

In  this  way  he  invariably  secured  at  the  outset 
the  support  and  co-operation  of  a  majority  of 
the  jury. 

In  capital  cases  where  the  prisoner's  life  hangs 
in  the  balance  there  will  always  be  found  in  the 
first  vote  a  few  blank  ballots.  These  are  cast, 
as  the  expression  is,  "to  provoke  discussion." 
Shrewd  old  jurors,  realizing  that  no  man  can  con- 
vince another  half  so  well  as  that  other  can  con- 

329 


The  Prisoner  at  the  Bar 

vince  himself,  will  often  vote  for  "not  guilty"  in 
order  to  get  their  fellows  worked  up  to  a  white 
heat  of  intellectual  frenzy  in  the  effort  to  bring 
them  over.  There  is  many  a  wily  Odysseus 
among  the  variegated  personalities  of  a  jury. 

"My  first  jury  trial,"  said  one  of  the  judges 
of  the  General  Sessions  recently,  "occurred  when 
I  was  a  very  young  man  and  had  just  been  ad- 
mitted to  the  bar.  It  was  my  initial  appearance 
in  a  court  of  justice.  However,  I  threw  out  my 
chest  and  tried  to  make  the  jury  think  I  was  an 
old  hand  at  the  business,  by  objecting  to  almost 
every  question  and  taking  exceptions  by  the  score. 
My  client  was  an  old  woman  who  had  been 
illegally  ejected,  or  who  claimed  to  have  been 
illegally  ejected,  by  the  agent  of  a  tenement  house 
which  belonged  to  Mr.  W.  D.  Sloane.  Of  course, 
I  don't  suppose  Mr.  Sloane  ever  heard  of  the 
incident,  but  I  was  suing  him  for  damages  and  put 
in  my  case  with  a  great  deal  of  vigor.  The  law- 
yer for  the  defence  was  a  big,  good-natured  man 
who  did  not  seem  to  care  very  much  which  way 
the  jury  decided  the  case.  The  judge  charged 
and  the  jury  retired.  They  were  gone  a  very 
long  time.  At  last  an  officer  appeared  with  a 
slip  of  paper.  The  judge  beckoned  the  lawyer 
for  the  other  side  and  myself  to  the  bench  and 
showed  us  the  jury's  message. 

330 


The  Verdict 

"  'We  want  a  bottle  of  whiskey  and  a  box  of 
cigars/  it  read,  and  was  signed,  'William  Smith, 
Foreman.' 

"  'Let  'em  have  them!'  remarked  the  good- 
natured  lawyer.  'I  don't  blame  'em  for  being 
thirsty.' 

"  'I  don't  know,'  I  replied.  'It  does  not  seem 
to  me  that  whiskey  would  help  them  to  decide  the 
facts  any  more  clearly!' 

"  'Of  course,  if  Mr. does  not  agree  to  it!' 

exclaimed  the  lawyer,  'I  have  nothing  to  say!' 
Then  he  turned  away  and  the  judge  whispered 
in  my  ear: 

"  'Young  man,  I  should  advise  you  to  let  these 
refreshments  go  into  the  jury-room.  You  have 
not  had  a  great  deal  of  experience  and  probably 
do  not  appreciate  the  effect  which  a  denial  of 
their  request  may  have  upon  the  jurors.  Take  a 
quiet  tip  from  me  and  let  the  whiskey  go  in.' 

"  'All  right,  your  Honor,'  said  I.  'I  bow  to 
your  Honor's  long  acquaintance  with  men  and 
your  experience  at  the  bar — of  justice.' 

"Well,  the  whiskey  and  cigars  went  in,  and  I 
could  see  as  the  officer  brought  them  through  the 
court-room  that  the  whiskey  was  the  very  best 
King  William  and  the  cigars  were  Havana  per- 
fectos.  I  wondered  with  some  misgivings  who 
was  paying  for  them. 


The  Prisoner  at  the  Bar 

"In  about  an  hour  the  jury  filed  in  flushed  and 
happy  and  rendered  a  verdict  in  favor  of  Mr. 
Sloane.  Some  time  afterwards  I  happened  to  be 
in  the  court-room  and  learned  from  the  officer 
that  the  jury  had  stood  eleven  to  one  in  my  favor 
for  over  three  hours.  The  foreman,  the  only  one 
against  me,  had  finally  remarked  that  he  was 
thirsty  and  had  offered  to  treat  the  rest  of  the 
jury.  In  less  than  an  hour  after  the  refreshments 
had  arrived  the  other  eleven  came  over  and  de- 
cided that  Mr.  Sloane  was  in  the  right." 

Another  judge  tells  of  an  experience  of  his 
when  serving  upon  a  jury  in  Ireland.  The  case 
over  they  retired  to  the  jury-room  and  found 
that  they  stood  eleven  to  one  for  acquittal,  but 
that  one  happened  to  be  a  very  complacent  old 
gentleman  in  a  billy-cock  hat  who,  with  his  chin 
resting  upon  the  head  of  a  thick  bamboo  came, 
announced  defiantly  that  he  was  ready  to  stay 
there  as  long  as  anybody.  The  hours  dragged 
slowly  by,  evening  drew  on,  and  still  the  old  gen- 
tleman obstinately  held  out.  The  jurors  disposed 
their  weary  bodies  as  best  they  could  along  the 
floor  and  the  hard  benches,  and  prepared  to  make 
a  night  of  it.  From  time  to  time  the  old  gentle- 
man would  contemplatively  suck  the  head  of  his 
bamboo  cane.  Finally  he  fell  fast  asleep  and  the 
cane  fell  heavily  to  the  floor.  Then  one  of  the 

332 


The  Verdict 

jurors  picked  it  up  and  found  to  his  surprise  that 
it  was  hollow  and  fled  with  good  old  Irish 
whiskey.  They  passed  the  cane  around,  relieved 
it  of  its  contents,  and  then  awoke  the  owner. 
Slowly  he  lifted  the  cane  to  his  mouth,  sucked  in- 
effectually for  a  moment,  looked  at  his  watch  and 
then  arose  with  the  announcement : 

"B'ys!  I'm  afther  changin'  me  moindl" 

A  recent  trial,  Donohue  vs.  The  New  York, 
New  Haven  and  Hartford  Railroad,  illustrates 
the  vagaries  of  individuals  which  may  seriously 
interfere  with  the  course  of  justice.  The  judge 
had  been  particularly  careful  to  elucidate  the 
point  of  law  which  the  jury  were  to  apply  to  the 
facts  as  they  found  them.  The  jury  unanimously 
agreed  that  the  facts  were  thus  and  so,  but  one 
of  their  number  refused  to  follow  the  law  as  laid 
down  by  the  court.  At  first  he  insisted  that  the 
judge  had  charged  differently,  but  it  soon  became 
obvious  that  this  was  not  the  true  cause  of  his 
indecision. 

"Well,"  exclaimed  the  foreman  at  last,  on  the 
verge  of  distraction,  "should  we  go  back  into 
court  and  the  judge  should  instruct  you  that  what 
we  say  is  the  law,  would  you  find  a  verdict  then?" 

The  juryman  hesitated  and  then  announced 
with  deliberation: 

"No;  not  until  I  had  consulted  my  attorney" 
333 


The  Prisoner  at  the  Bar 

A  frankly  unscrupulous  member  of  the  crim- 
inal bar  tells  the  following  story  at  his  own  ex- 
pense. His  client  was  indicted  for  murder  and 
on  the  evidence  apparently  guilty.  The  lawyer's 
only  chance,  as  he  thought,  lay  in  trying  to  "work 
it  down"  to  manslaughter,  which  would  get  his 
client  off  with  twenty  years'  imprisonment.  Ac- 
cordingly he  told  his  clerk  to  become  friendly 
with  the  jurymen,  treat  them  to  drinks,  and  see 
what  he  could  do.  The  clerk  reported  that  he 
had  become  very  thick  with  the  twelfth  juoror, 
an  old  Irishman,  who  had  promised  to  "hold  out 
for  manslaughter."  The  lawyer  told  his  client, 
and  both  ceased  to  worry  about  the  result,  as 
death  no  longer  stared  the  prisoner  in  the  face. 
The  jury  retired  and  remained  out  twenty-three 
hours.  At  the  end  of  that  time,  tired,  dishevelled, 
exasperated,  they  filed  into  court  and  returned 
a  verdict  of  manslaughter.  The  lawyer  warmly 
congratulated  his  client.  As  the  jury  were  sepa- 
rating the  old  Irishman  leaned  over  to  the  lawyer 
and  exultantly  whispered: 

"Bedad,  I  had  th'  divil  av  a  time  av  it!  Elivin 
o'  thim  were  for  lettin'  him  go  entirely!" 


334 


CHAPTER  XIT 

THE  SENTENCE 

"TT  THAT  have  you  to  say  why  judgment  of 
T  T    the    court    should    not    be    pronounced 
against  you  according  to  law?" 

With  these  words  begins  the  final  chapter  of 
the  convict's  history.  He  has  been  arraigned  for 
the  last  time  at  the  bar  of  justice,  after  a  jury  of 
his  peers  has  decleared  him  "guilty,"  and  now 
awaits  his  sentence. 

The  judge  who  presides  at  the  trial  of  a  crim- 
inal case  does  but  begin  his  labors  when  he  re- 
ceives the  jury's  verdict.  If  he  be  a  man  of  sensi- 
bilities the  strain  of  a  trial  is  as  nothing  compared 
with  the  responsibility  of  determining  whether 
the  defendant  shall  be  let  go  free  under  a  "sus- 
pended" sentence  or  ordered  to  prison.  No  one 
appreciates  the  horror  of  prison  life  or  its  effect 
upon  the  individual  better  than  the  judge  him- 
self, and  he  may  pass  many  a  sleepless  night  be- 
fore sentencing  a  man  whose  circumstances  and 
whose  years  suggest  the  possibility  of  reforma- 
tion. 

335 


The  Prisoner  at  the  Bar 

Where  the  defendant  has  been  found  guilty  of 
murder  in  any  of  its  degrees  the  judge  is,  of 
course,  relieved  of  the  responsibility  of  deter- 
mining the  sentence,  which  is  fixed  by  law,  and  the 
interrogation  of  the  clerk  must  seem  but  a  mock- 
ery to  the  prisoner,  who  knows  that,  whatever  he 
may  say  in  his  own  behalf,  the  judgment  of  the 
court  will  be  the  same.  For  this  reason  counsel 
rarely  address  the  court  upon  the  sentence  in  such 
a  case,  but  sometimes  the  prisoner  himself  seeks 
a  last  public  opportunity  to  assert  his  innocence 
or  proclaim  his  repentance. 

On  Saturday  morning,  March  21,  1829,  Rich- 
ard Johnson,  convicted  of  the  murder  of  Ursula 
Newman,  was  brought  to  the  bar  of  the  New 
York  Court  of  Oyer  and  Terminer,  and  was 
asked  what  he  had  to  say  why  judgment  of  death 
should  not  be  pronounced  against  him  according 
to  law.  In  the  faded  ink  of  the  records  of  the 
General  Sessions  is  inscribed  the  following: 

The  prisoner  replies : 

If  your  Honor  please.  I  am  asked  what  I  have  to  say 
why  judgment  of  death  should  not  be  pronounced  against 
me?  To  this  I  reply — To  the  judgment  of  the  law,  noth- 
ing. A  jury  of  my  country  has  pronounced  me  guilty;  and 
there  remains  no  discretion  with  the  court  but  to  pronounce 
upon  me  the  sentence  of  the  law.  But  to  the  judgment  of 
the  world  I  have  much  to  say.  I  have  been  convicted  of  a 
crime  the  bare  recital  of  which  causes  humanity  to  shudder. 
And  it  is  a  duty  which  I  owe  to  myself  while  living,  and 
to  my  memory  when  dead  that  the  circumstances  of  my 

336 


The  Sentence 

offence  should  be  fully  explained.  Before  entering  into  the 
detail,  I  must  take  this  public  opportunity  in  the  name  of 
that  omniscient  and  all-merciful  Being  who  will  hereafter 
pronounce  his  judgment,  alike  upon  my  judges  &  myself, 
of  disclaiming  any  knowledge  of  the  transactions  of  that 
fatal  2Oth  of  November.  I  do  not  mean  to  impugn  the 
decision  of  the  jury;  the  movements  of  the  mind  were 
beyond  their  power  to  penetrate;  and  hard  as  is  my  fate 
I  numbly  bow  to  their  verdict.  I  cannot  here  enter  fully 
into  the  details  of  my  intimacy  with  the  unfortunate  cause 
of  my  present  awful  situation.  Duped  and  betrayed  as  I 
have  been  into  sorrow  and  bitter  despair,  and  lastly  in- 
voluntary crime  I  am  unwilling  while  living  to  indulge  in 
unavailing  reproaches.  In  life  the  deceased  was  the  object 
of  my  tenderest  affection.  An  affection  that  her  own  un- 
kind conduct  seemed  to  inflame,  and  that,  baffled  in  its 
honorable  purpose — expelled  reason  from  her  throne,  and, 
in  its  absence,  led  to  the  commission  of  the  offence,  for 
which  I  am  now  to  satisfy  the  offended  community  by  my 
own  life.  Was  I  conscious  of  any  moral  guilt,  at  this 
result  I  should  not  repine.  Accustomed  throughout  my 
life  to  respect  the  law,  I  have  not  now  to  learn  that  the 
blood  of  the  murderer  is  alike  a  propitiating  sacrifice  to  the 
laws  of  God  and  man.  Convicted  of  the  legal  crime  I 
know  my  fate.  For  the  moral  offence  I  have  to  answer 
to  my  conscience  and  my  God ;  and  that  innate  monitor 
tells  me,  that  I  stand  before  this  court  and  this  community 
a  legal  but  not  a  moral  murderer.  To  my  counsel  who 
have  so  ably  though  vainly  made  my  defence,  I  tender  my 
warmest  thanks.  Of  the  court  I  have  but  one  request  to 
make,  that  the  period  allowed  me  to  prepare  for  my  im- 
pending fate  may  be  as  long  as  the  law  will  permit. 
The  sentence  of  the  court  was  then  pronounced. 

Compare  this  solemn  and  thrilling  declaration 
with  what  occurred  upon  the  sentence  of  Dr. 
Carlyle  W.  Harris,  convicted  of  the  murder  of 
his  girl-wife  by  the  administration  of  morphine 

337 


The  Prisoner  at  the  Bar 

capsules  which  he  compounded  and  furnished  to 
her.  He  had  married  her  secretly  under  an  as- 
sumed name  and  in  all  probability  had  never  in- 
tended to  recognize  her  as  his  wife.  Events 
finally  rendered  it  impossible  for  him  to  conceal 
the  marriage  longer,  and,  realizing  this,  he  pro- 
cured for  her  the  medicine  which  caused  her 
death.  Harris  was  a  gentleman, — or  rather  he 
was  a  very  debonair,  nonchalant,  and  brazen  imi- 
tation of  one.  Throughout  his  trial  he  had  pre- 
served an  absolutely  unruffled  exterior,  chatting 
affably  with  counsel  and  court  attendants,  and  re- 
ceiving the  verdict  with  undiminished  equanimity. 
On  the  day  set  for  his  sentence  he  came  into  court 
with  the  easy  and  gracious  manner  of  a  young 
man  paying  an  afternoon  call.  He  was  arraigned 
at  the  bar  and  the  Recorder  [Smyth]  proceeded 
to  rehearse  the  history  of  his  terrible  crime  and 
stigmatize  the  loathsome  character  of  his  act. 
Harris  listened  politely,  and  apparently  en- 
deavored to  show  a  considerable  interest  in  his 
remarks.  Then  the  Recorder  made  some  slight 
error  in  giving  a  date. 

"Pardon  me,  your  Honor,"  interrupted  the 
blithe  defendant,  "it  was  the  eighteenth  and  not 
the  nineteenth "  and  corrected  him. 

The  Recorder  frowned  and  replied  with 
dignity. 

338 


The  Sentence 

"That  is  a  matter  of  slight  importance !" 

"I  beg  your  Honor's  pardon,"  returned  Harris 
flippantly;  "you  see,  I  have  never  been  sentenced 
to  death  before,  and  am  not  as  familiar  with  the 
procedure  as  might  be." 

Unpleasant  as  is  the  duty  of  the  prosecutor 
who  is  obliged  to  move  that  the  sentence  of  death 
be  pronounced,  it  is  less  terrible  than  listening  to 
the  few  simple  but  hopeless  words  that  doom  a 
convict  to  life  imprisonment.  The  murderer  must 
die;  but  it  will  soon  be  over.  The  ghost  of  his 
victim  will  in  a  few  weeks  cease  to  haunt  his 
dreams.  But  the  "lifer"  I  Who  can  picture  the 
horror  of  a  lifetime  of  repentance  or  of  mocking 
remorselessness  ?  "Civilly  dead,"  he  is  doomed 
to  drag  out  his  weary  years  in  an  earthly  tomb, 
a  silent,  forgotten  creature,  numbered  like  a  hu- 
man specimen,  enduring  all  the  tortures  of  purga- 
tory until  the  end  seems  a  far  distant  haven  of 
oblivion.  The  court-room  echoes,  like  the  empty 
future  of  the  white-faced  prisoner,  to  the  dull 
fall  of  the  words  upon  his  barren  soul — "for  the 
rest  of  your  natural  life!1  The  listener  shudders. 
"God  grant  that  it  be  short!"  he  murmurs,  then 
looks  away. 

Of  course,  in  the  seventeenth  century  and  early 
in  the  eighteenth  all  felonies  were  punishable,  not 
only  in  England  but  in  America,  by  death.  When 

339 


The  Prisoner  at  the  Bar 

the  severity  of  punishment  began  to  be  abated  and 
imprisonment  substituted  for  the  extreme  penalty, 
all  sentences  were  for  a  fixed  and  definite  term, 
and  the  only  way  that  the  convict  could  obtain 
release  or  secure  the  modification  of  his  sentence 
was  by  pardon  from  the  supreme  executive  au- 
thority of  the  country. 

Sometimes  a  ray  of  sunshine  illumines  the 
dreary  pages  of  these  parchment-bound  volumes, 
the  stiff  phraseology  of  the  crabbed  entries  failing 
to  obscure  it.  For  example,  on  Monday  morn- 
ing, March  29,  1784,  "The  Court  met  pursuant  to 
adjournment"  and  was  "opened  by  proclamation." 
The  grand  jury  came  into  court  and  presented  an 
indictment  against  one  Sylvia,  a  negro  slave,  "for 
stealing  monies  from  Alexr  Johnson." 

"The  prisoner  being  set  to  the  bar  and  ar- 
raigned, did  plead  guilty,  and  for  trial  put  herself 
upon  God  and  the  country."  Her  case  was  im- 
mediately moved.  One  witness,  the  Alexander 
Johnson  mentioned,  testified. 

"The  jury  without  going  from  the  Bar  say, 
that  they  find  the  prisoner  at  the  bar  Guilty  of 
Felony  whereof  she  stands  indicted.  ..." 

Just  one  week  later,  Sylvia,  now  a  convict, 
"was  called  to  the  Bar,  for  judgment,  and  it  being 
demanded  of  her  in  the  usual  manner  what  she 
could  say  for  herself  why  judgment  of  Death 

340 


The  Sentence 

should  not  now  pass  against  her,  according  to 
law,  she  did  produce  and  plead  a  pardon  of  the 
People  of  the  State  of  New  York,  under  the 
Great  Seal,  hearing  test  the  3ist  March,  1784, 
which  was  read  and  allowed,  and  the  Prisoner 
discharged." 

Sylvia  was  undoubtedly  a  valuable  piece  of  per- 
sonal property — valuable  enough  evidently  to 
make  it  worth  her  master's  while  to  urge  his 
claims  upon  the  Governor  for  clemency. 

White  offenders  did  not  always  fare  as  well. 
But  for  them  in  the  colonial  times  still  occasion- 
ally remained  that  quaint  old  plea  of  "benefit  of 
clergy."  This  lingered  on  as  late  as  1784,  when 
the  record  shows  that  one  John  Cullen,  having 
been  convicted  of  forgery, 

"ON  MOTION  of  Mr.  Attorney-General  ...  was 
sent  to  the  Bar  for  judgment,  and  it  being  demanded  of 
him  in  the  usual  form  what  he  could  say  for  himself  why 
judgment  of  death  should  not  pass  against  him  according 
to  Law,  he  prayed  the  Benefit  of  Clergy,  which  was 
granted  by  the  Court. 

THEREUPON  IT  WAS  ORDERED  that  the  said 
John  Cullen  be  branded  in  the  brawn  of  the  left  Thumb 
with  the  letter  T  in  the  presence  of  the  court,  and  that  the 
sheriff  execute  the  order  immediately,  which  was  done 
accordingly." 

Benefit  of  clergy  was  the  historic  privilege  ac- 
corded in  England  to  all  priests  of  being  tried 
only  in  the  ecclesiastical  courts  for  their  crimes. 


The  Prisoner  at  the  Bar 

Coke  says  that  "it  took  its  root  from  a  constitu- 
tion of  the  Pope  that  no  man  should  accuse  the 
priests  of  Holy  Church  before  a  secular  judge. " 
As  all  common-law  felonies  (except  petty  larceny 
and  mayhem)  were  punishable  by  death  even  as 
late  as  1826,  and  as  these  felonies  included  homi- 
cide, rape,  burglary,  arson,  robbery  and  larceny, 
and  all  were  clergy  able,  it  must  have  been  a  pre- 
rogative of  considerable  value  to  any  member  of 
the  cloth  of  lively  disposition. 

Originally  the  privilege  could  be  claimed  be- 
fore trial,  and  ousted  the  lay  courts  of  any  juris- 
diction whatever,  the  right  being  strictly  limited, 
however,  to  those  who  exhibited  all  the  physical 
attributes  and  garb  of  priesthood,  having  "habi- 
tum  et  tonsuram  clericalem,"  but  long  before 
(1350)  it  was  provided  that  "all  manner  of 
clerks,  as  well  secular  as  religious,  shall  from 
henceforth  freely  have  and  enjoy  the  privileges  of 
Holy  Church."  As  a  priest's  trial  in  the  ecclesias- 
tical courts  was  hardly  more  than  a  matter  of 
form,  with  rarely  any  result  save  that  of  ac- 
quittal, he  who  could  plead  his  "benefit"  was 
practically  immune  so  far  as  punishment  for  his 
crimes  was  concerned.  In  course  of  time  the  right 
was  accorded  only  after  conviction  in  the  secular 
courts. 

342 


The  Sentence 

In  1487  its  was  provided  that  every  person 
convicted  of  a  clergyable  felony  should  be 
branded  in  the  brawn  of  his  thumb,  so  that  mere 
inspection  would  reveal  second  offenders.  The 
letter  M  stood  for  murderer  and  T  for  thief 
or  forger,  as  we  have  seen  in  Cullen's  case.  The 
statute  also  provided  that  no  person  could  plead 
his  clergy  a  second  time  unless  he  were  actually  in 
orders.  Thus  as  late  as  1487  practically  any  one 
who  could  read  or  write  might  commit  as  many 
crimes,  including  murder,  as  he  chose,  with  no 
fear  of  punishment  save  of  having  to  make  his 
purgation,  and  after  that  date  could,  so  to  speak, 
have  one  murder,  arson  or  larceny  and  escape 
with  branding,  while  the  priest  in  orders  con- 
tinued free  to  violate  the  law  to  his  heart's  con- 
tent. Perhaps  this  wholesale  extension  of  the 
privilege  was  made  in  the  interest  of  education 
and  as  an  incentive  to  literary  accomplishment. 
It  certainly  put  a  premium  on  learning  which  a 
mere  "degree'  could  not  offer. 

From  the  beginning  of  the  eighteenth  century 
on  (the  privilege  having  been  extended  by  statute 
to  all  the  inhabitants  of  England,  male  or  fe- 
male), any  one,  irrespective  of  his  learning,  could 
plead  his  clergy  once  to  any  crime  that  remained 
clergyable,  if  he  could  find  one,  and  priests  in 
orders  could  do  so  indefinitely.  But  the  crimes 

343 


The  Prisoner  at  the  Bar 

which  were  clergyable  were  correspondingly  re- 
duced in  number.  In  1779  branding  was  prac- 
tically done  away  with  in  England.  (19  Geo.  3, 
c.  74  s.  3.) 

It  is  interesting  to  find  the  custom  still  in  vogue 
in  America  as  late  as  1784,  as  shown  by  the  case 
of  Cullen.* 

In  one  or  two  of  the  Southern  States  the  plea 
lingered  on  for  nearly  another  half  century. 

When  the  defendant  could  not  avail  himself  of 
clergy  and  no  pardon  was  at  hand  to  save  him, 
the  law  in  the  early  days  took  its  full  and  awful 
course.  Thus  we  read  in  the  first  almost  illegible 
volume  of  the  records,  the  phraseology  of  the  sen- 
tence, save  for  its  terms,  being  practically  the 
same  to  this  day : 

*The  whipping  post  and  the  pillory  were  in  active  use 
until  comparatively  recent  times.  Under  Dutch  rule  the  former 
occupied  a  conspicuous  place  in  front  of  the  Stadt  Huys  on  the 
strand.  As  a  matter  of  great  leniency  the  floggings  were  some- 
times conducted  in  a  room  to  which  the  public  was  not  ad- 
mitted. But  the  disgrace  of  the  performance  was  regarded  as 
an  integral  part  of  the  punishment.  The  offenders  were  at  the 
same  time  branded  and  frequently  banished.  A  New  York 
paper,  dated  1712,  says  that  one  woman  at  the  whipping  post 
"created  much  amusement  by  her  resistance."  The  New  York 
Gazette  for  May  14,  1750,  states: 

"Tuesday  last  one  David  Smith  was  convicted  in  the  Mayor's 
Court  of  Taking  or  Stealing  Goods  off  a  Shop  Window  in 
this  City,  and  was  sentenced  to  be  whipped  at  the  Cart's  Tail 
round  this  Town  and  afterwards  whipped  at  the  Pillory 
which  sentence  was  accordingly  executed  on  him."  The  same 
paper  for  October  a,  1752,  describes  the  pillorying  of  a  boy 
for  picking  pockets  and  the  whipping  of  an  Irishman  for  steal- 
ing deerskins.  In  the  olden  days  many  a  common  scold  was 
ducked  into  quiescence  in  the  North  River. 

344 


The  Sentence 

Att  a  Court  holdcn  for  the  tryal  of  negro 
and  Indian  slaves  at  the  Citty  Hall 
of  the  Citty  of  New-York,  on  Tues- 
day the  15th  day  of  April,  Anno 
Dom.  1712. 
PRESENT  : 

Caleb  Heathsope,  1  FC^,,,V« 

William  Smith,  ^"i    I  ~ 

Edward  Blagge     J 

Court  opened — 

The    defend*    Tom    being 


Dom  Regina 


vs. 


Tom  the  Negro  man,  slave- 
of  Nicholas  Rossvelt 
J.D. 


brought  to  the  Barr  &  having 
nothing  to  say  for  himself 
why  judgment  of  death  should 
not  pass  ag*  him  according  to 
the  verdict  &c.  It  is  con- 


sidered by  the  Court  that  he 
be  carryed  from  hence  to  the  place  from  whence  he  came 
and  from  thence  to  the  place  of  execution  and  thence  to  be 
burned  with  a  slow  fire  that  he  may  continue  in  torment 
for  eight  or  ten  hours  and  continue  burning  in  said  fire 
untill  he  be  dead  and  consumed  to  ashes. 

At  present,  when  "benefit  of  clergy"  is  but  a 
legal  tradition,  and  pardons  are  obtained  with 
difficulty,  but  one  legal  barrier  can  be  raised  to 
the  interposition  of  sentence  upon  a  convict- 
proof  of  his  insanity.  If,  in  the  opinion  of  the 
court,  there  is  reasonable  ground  for  believing 
him  to  be  mentally  unbalanced,  the  question  must 
be  determined  as  provided  in  the  Code.  If  he  is 
found  to  be  sane,  judgment  must  then  be  pro- 
nounced, but  if  found  insane  he  must  be  com- 
mitted to  the  State  Lunatic  Asylum  until  he  re- 

345 


The  Prisoner  at  the  Bar 

covers  his  sanity,  and  when  notice  is  given  of  that 
fact  he  must  be  brought  before  the  court  for 
judgment.  Of  course,  he  may  also  allege  legal 
ground  why  the  judgment  should  be  arrested  or 
why  a  new  trial  should  be  granted,  but  at  this 
time  a  technical  discussion  of  these  motions 
would  be  unnecessary. 

Defendants  are  far  less  likely  to  feign  in- 
sanity at  the  time  of  their  sentence  than  they 
are  upon  the  actual  trial;  for  if  a  man  is  clever 
enough  to  act  the  part  of  a  lunatic  he  is  shrewd 
enough  to  realize  that  the  best  time  to  do  so  is 
before  he  has  been  convicted  of  the  crime  charged 
against  him. 

There  is  a  reputed  case,  the  memory  of  which 
still  lingers  around  the  criminal  courts,  where  it 
is  said  that  a  defendant  who  was  charged  with 
murder  in  its  first  degree  feigned  insanity  just 
before  his  case  was  moved  for  trial.  This  was 
many  years  ago,  at  a  time  when  such  a  fact  did 
not,  of  itself,  necessarily  excite  the  same  suspicion 
that  it  does  to-day.  The  issue  of  the  defendant's 
sanity  was  tried  before  a  lay  jury,  who  promptly 
found  that  he  was  incapable  of  understanding  the 
proceedings  against  him  or  of  making  proper 
preparation  for  his  defence.  He  was  thereupon 
committed  to  the  State  Asylum  for  the  Insane, 
where  he  remained  incarcerated  for  many  years. 

346 


The  Sentence 

It  so  happened  that  there  was  but  a  single  eye- 
witness to  the  shooting,  and  the  circumstances 
surrounding  the  affair  were  such  that  without  the 
testimony  of  this  witness  it  would  be  a  practical 
impossibility  to  determine  whether  the  deceased 
had  been  murdered  or  had  committed  suicide. 
After  twenty  years,  in  the  course  of  which  the  de- 
fendant's lawyer  had  died  and  the  entire  family 
of  the  prisoner  had  either  died  or  disappeared, 
another  lawyer,  who  had  found  among  some  old 
papers  a  memorandum  of  the  case,  went  to  Mat- 
teawan,  located  the  defendant,  and  discovered, 
as  he  had  anticipated,  that  he  was  entirely  sane. 
A  writ  of  habeas  corpus  was  thereupon  procured 
and  the  defendant  brought  back  to  New  York. 

In  that  time  the  entire  aspect  of  the  city  had 
changed.  Buildings  twenty-five  stories  in  height 
had  replaced  those  of  six;  the  city  had  reached 
far  up  and  entirely  covered  the  island;  electric 
surface  cars  had  taken  the  place  of  ramshackle, 
bobtail  horse  cars.  The  defendant,  prematurely 
aged  and  with  clothes  long  out  of  date,  impressed 
those  in  the  court-room  as  a  sort  of  Rip  Van 
Winkle,  awakened  after  a  long  sleep.  There  was 
absolutely  no  question  as  to  the  man's  sanity,  and 
he  was  discharged  upon  the  writ  of  habeas  corpus 
and  remanded  to  the  Tombs  to  await  his  trial. 
The  following  morning  he  was  brought  into  court, 

347 


The  Prisoner  at  the  Bar 

and  the  district  attorney  moved  that  the  indict- 
ment against  him  be  dismissed  on  the  ground 
that  there  was  no  longer  any  evidence  upon  which 
the  people  could  proceed  to  prosecution.  Then 
for  the  first  time  the  defendant  discovered  that 
the  only  witness  against  him  had  died  ten  days 
after  he  had  been  committed  to  the  asylum.  Al- 
though the  writer  does  not  vouch  for  the  authen- 
ticity of  this  story,  the  incident  may  well  have 
happened. 

In  addition  to  the  legal  ground  of  insanity 
why  judgment  should  not  be  imposed,  a  convict 
or  his  counsel  may  properly,  on  his  arraignment, 
state  to  the  court  any  general  reasons  for  a  miti- 
gation of  sentence  or  for  its  absolute  suspension 
when  such  is  within  the  discretion  of  the  court, 
and  few  sentences  are  imposed  without  a  more  or 
less  lengthy  appeal  for  clemency  from  the  de- 
fendant's lawyer,  who  usually  does  not  confine 
himself  merely  to  the  contrition  of  the  defendant, 
his  past  respectability  and  his  pledges  to  lead  a 
new  and  better  life,  but  is  prone  to  discourse 
volubly  upon  the  reputable  connections  of  the  de- 
fendant, the  hardship  which  a  sentence  will  im- 
pose upon  his  family,  and  the  fact  that  the  com- 
plainant or  those  who  have  been  interested  in  the 
prosecution  now  have  a  profound  sympathy  for 
the  prisoner.  The  gist  of  many  of  these  appeals 

348 


The  Sentence 

is  to  the  effect  that  because  the  defendant,  by  rea- 
son of  his  education  and  opportunities,  ought  to 
have  known  better  than  to  commit  crime,  he 
should  now,  since  he  has  discovered  his  mistake, 
be  excused  from  paying  the  penalty.  The  judge 
invariably  listens  with  courtesy  to  these  orations, 
which  are  not  often  made  with  any  idea  of  act- 
ually influencing  the  court's  decision.  They  are 
grateful  to  the  defendant  and  his  family,  and 
impress  the  latter  with  the  fact  that  the  lawyer 
is  doing  ererything  in  his  power  to  get  his  client 
off. 

It  is  now  the  judge's  soul  is  tried.  How  far 
may  he  temper  justice  with  mercy?  How  far 
are  the  interests  of  the  public  and  the  prisoner 
irreconcilable?  Many  youthful  offenders,  who 
have  not  hitherto  been  convicted,  escape  with  a 
suspended  sentence  or  a  commitment  to  a  re- 
formatory— even  when  found  guilty  of  crimes  as 
serious  as  manslaughter  or  robbery.  Little  mercy 
is  shown  to  old  offenders.  In  fact,  the  law  now 
provides  that  they  may  be  tried  under  an  indict- 
ment charging  them  with  having  committed  a 
"second  offence,"  under  which,  if  found  guilty, 
they  must  be  sentenced  to  the  maximum  penalty 
set  for  a  first  offence  of  the  same  crime. 

It  should  be  noticed  that  originally  only  one 
sentence,  and  that  a  definite  one,  could  be  passed 

349 


The  Prisoner  at  the  Bar 


by  the  judge  upon  a  prisoner  for  any  given 
offence.  At  first  there  were  no  provisions  of  law 
granting  to  convicts  as  a  matter  of  right  any  re- 
duction or  commutation  of  sentence  because  of 
good  behavior.  Then  laws  were  passed  which 
provided  for  the  definite  commutation  of  the  sen- 
tences of  all  convicts  confined  in  State's  prison. 
The  question  as  to  whether  or  not  the  convict  had 
earned  his  commutation  by  good  behavior  was 
left  to  a  board  composed  of  the  State  superin- 
tendent of  prisons  and  others.  A  carefully  pre- 
pared scale  or  table  showed  exactly  how  much 
commutation  it  was  possible  for  any  prisoner  to 
earn.* 

In  1889  there  was  introduced  into  New  York 
State  for  the  first  time  what  is  commonly  known 
as  the  "indeterminate  sentence,"  that  is  to  say,  a 
sentence  consisting  of  a  minimum  and  a  maximum 
term  of  imprisonment  during  which  the  prisoner 

"The  periods  of  commutation  are  shown  by  the  following  table : 


SENTENCE 

COMMUTATION 

SENTENCE 

COMMUTATION 

Years 

Years 

Months 

Years 

Years 

Months 

I               .... 

2 

4 
8 

'5 
10 
3 

8 

i 
6 

ii  

12 

3 
4 
4 
5 
5 
7 
9 
II 
13 

ii 

A 

9 
a 
7 
8 
9 
10 
ii 

2 

3  

13    

4 

I 
i 

i 

2 
2 
3 
3 

14 

s  .  . 

15          

6         : 

2O 

7.            

25    

8  
9    

3O 

35  

IO 

35° 


The  Sentence 

may  be  discharged  at  the  option  of  a  board  con- 
sisting of  various  persons,  but  distinct  from  that 
which  passes  upon  the  question  of  whether  or  not 
he  has  earned  his  "commutation."  The  intro- 
duction of  this  form  of  sentence  is  in  conformity 
with  the  most  recent  and  most  enlightened  view 
of  the  proper  attitude  of  the  State  towards  its 
criminals. 

Whenever  the  indeterminate  sentence  has  been 
introduced  into  any  State  it  has  been  invariably 
attacked  as  being  unconstitutional,  but  the  courts 
have  uniformly  upheld  it.  The  principal  differ- 
ence to  be  noted  between  "commutation"  and 
"indeterminateness"  of  sentence  is  that  the  latter 
is  vastly  broader  in  effect,  since  only  the  prisoner's 
good  behavior  while  actually  undergoing  his  sen- 
tence in  State's  prison  may  be  considered  by  the 
board  which  passes  upon  his  commutation,  while, 
in  the  case  of  the  indeterminate  sentence,  the 
parole  board  may  consider  all  the  facts  surround- 
ing the  commission  of  the  crime  ,the  convict's 
past  life,  and  whatever  other  facts  they  see  fit, 
as  well  as  his  good  behavior  during  his  period  of 
confinement.* 

After  conviction  the  natural  optimism  of  the 


Some  Aspects  of  the  Indeterminate  Sentence,"  by  C.  D. 
Warner,  8  Yale  Law  Journal  219.  See  also  9  Yale  Law 
Journal  17,  as  well  as  "Das  Moderne  Amerikanische  Besserungs- 
system,"  Dr.  Paul  Herr  (Berlin,  1907). 

351 


The  Prisoner  at  the  Bar 

human  race  reasserts  itself  and  the  defendant 
begins  to  believe  that  the  worst  is,  after  all,  over, 
and  to  rely  upon  the  assurances  of  his  counsel  or 
his  political  friends  that  the  judge  is  going  to  be 
easy  on  him  and  give  him  a  light  sentence.  Ter- 
rible is  the  disappointment  of  such  a  one  who  finds 
that  he  is  going  to  be  sentenced  to  State's  prison 
when  he  expected  the  penitentiary  or  to  the  peni- 
tentiary when  he  expected  to  be  set  free  entirely 
under  a  suspended  sentence. 

The  judge  usually  prefaces  the  sentence  with  a 
few  remarks  of  an  admonitory  character,  com- 
menting upon  the  severity  of  the  crime  which  the 
defendant  has  committed,  and  upon  the  fact  that 
it  is  within  his  power  to  sentence  the  latter  to  a 
long  term  of  imprisonment.  He  generally  adds 
that,  under  all  the  circumstances  and  considering 
the  fact  that  the  defendant  has  never  been  con- 
victed before  and  has  hitherto  led  a  reputable  life, 
he  will  be  merciful  and  give  him  only  so  and  so 
many  years  in  State's  prison. 

Of  course,  this  occurs  only  in  such  cases  as  de- 
serve leniency.  But  where  the  defendant  is  a 
hardened  criminal,  or  an  ex-convict,  or  when  his 
crime  is  one  of  atrocity,  he  is  apt  to  learn,  in  no 
unmeasured  terms,  what  the  judge  and  the  com- 
munity think  of  him.  The  writer  has  heard  a 
prisoner  censured  in  such  language  that  he 

352 


The  Sentence 

blushed  for  the  human  race  of  which  the  convict 
could  be  the  offspring.  Most  defendants  receive 
their  sentence  with  imperturbability,  for  they 
are  able  with  approximate  accuracy  to  figure  out 
what  punishment  they  will  probably  receive.  The 
experiences  of  their  acquaintances  in  the  Tombs 
are  of  great  assistance  in  this  matter,  yet  more 
than  one  convict  falls  senseless  on  the  floor  when 
sentence  is  pronounced  upon  him,  and  hundreds 
lose  their  nerve  and  stagger  away  bewilderedly 
at  the  thought  of  the  interminable  years  before 
them. 

Yet  a  layman  happening  to  be  present  on  a 
Friday  in  the  Court  of  General  Sessions  would 
be  surprised  at  the  apparent  lightness  of  most 
of  the  sentences.  The  judges  of  our  criminal 
courts  are  merciful  men  and  rightly  believe  that 
a  year  or  two  in  State's  prison  has  a  better  effect 
upon  the  defendant  than  a  longer  term.  A  short* 
term  man  emerges,  at  least  it  is  so  to  be  hoped, 
with  some  aspirations  for  the  future  and  with 
health  as  yet  not  undermined.  To  most  judges 
the  infliction  of  sentence  upon  a  fellow  human 
being  ever  remains  a  bitter  experience.  In  the  old 
days,  however,  there  were  some  judges  who, 
not  unlike  Jeffries,  took  a  certain  grim  satisfac- 
tion in  the  performance  of  this  duty.  There  was, 
many  years  ago,  one  of  them  who  seemed  to  take 

353 


The  Prisoner  at  the  Bar 

a  particular  delight  in  so  far  as  possible  prolong- 
ing the  agony  of  the  defendant's  uncertainty. 
When  a  prisoner  had  been  arraigned  for  sentence 
the  judge  would  wait  for  absolute  silence,  and 
would  then  with  the  greatest  deliberation  address 
a  long  harangue  to  the  unfortunate  man,  char- 
acterize his  crime  in  the  severest  manner,  excori- 
ate him  for  having  committed  it,  name  the  maxi- 
mum penalty  which  the  law  allowed,  intimate 
that  he  was  going  to  impose  it,  and  then,  after  a 
long  hiatus,  slowly  take  down  his  sentence  book, 
ink  his  pen  with  annoying  deliberation,  cough  two 
or  three  times,  look  around  the  court-room  and 
begin  carefully  inscribing  each  word  upon  the 
record  before  him,  "I — shall — therefore — sen- 
tence— you — to — [cough,  another  glance  around 
the  room] — five  years  in  State's  prison." 

Many  pathetic  and  also  amusing  incidents 
occur  upon  these  occasions.  There  is  a  true  story 
of  an  incident  which,  however,  did  not  occur  in 
the  General  Sessions  of  New  York  County,  where 
a  prisoner  who  had  been  convicted  was  arraigned 
before  the  judge  for  sentence.  This  judge  was  an 
aged  man  with  a  great  reputation  for  his  bitter 
wit  and  sarcasm.  The  convict,  who  had  been 
convicted  of  being  a  common  gambler  and  who 
was  described  by  the  court  officers  as  a  "fly  guy," 
appeared  in  a  loudly  checked  yellow  and  black 

354 


The  Sentence 

suit  with  a  red  necktie  and  a  large  paste  diamond 
horseshoe  pin.  The  judge  from  under  his  beet- 
ling eyebrows  looked  fiercely  down  upon  him 
from  the  bench  and  remarked  with  intense  scorn : 

"I  sentence  you  to  pay  a  fine  of  fifty  dol- 
lars  " 

"That's  all  right,  judge/'  interupted  the  "fly 
guy"  nonchalantly,  thrusting  his  hand  into  his 
trousers.  "Got  it  in  my  pants  pocket." 

" And  to  three  years  and  six  months  in 

State's  prison,"  continued  his  Honor,  with  a 
slight  twinkle  in  his  eye.  "Have  you  gol  THAT 
in  your  pants  pocket?" 

Recorder  Smyth  is  said  to  have  had  a  habit  of 
entering  the  sentences  which  he  proposed  to  in- 
flict in  a  book  which  he  kept  for  that  purpose. 
He  also  generally  made  use  of  a  regular  set  form 
of  expression  when  imposing  them.  A  miserable 
little  defendant  who  was  gifted  with  a  greater 
fund  of  originality  than  of  common-sense,  had 
conceired  the  extraordinary  idea  of  stealing  a 
ship's  anchor  belonging  to  a  company  which 
owned  a  dock  in  the  North  River.  For  this  pur- 
pose he  procured  a  dray,  drawn  by  six  or  eight 
horses,  and  a  derrick,  by  means  of  which  he 
koisted  the  anchor  in  question  upon  the  dray  in 
the  dead  of  night  and,  as  might  have  been  ex- 
pected, succeeded  in  getting  only  about  half  way 

355 


The  Prisoner  at  the  Bar 

down  the  dock  with  it  before  he  was  apprehended 
by  a  watchman. 

Naturally  he  had  no  adequate  explanation  to 
offer  and  promptly  pleaded  guilty.  He  was  ar- 
raigned at  the  bar  in  company  with  several  other 
defendants.  Recorder  Smyth,  his  mind  still 
dwelling  upon  the  words  with  which  he  had  sen- 
tenced the  latter,  thus  addressed  the  trembling 
miscreant: 

"You  have  pleaded  guilty  to  the  crime  of  steal- 
ing a  ship's  anchor  I" — then  raising  his  voice  he 
continued,  with  perfect  solemnity:  "The  crime 
of  stealing  a  ship's  anchor  is  becoming  entirely 
too  prevalent!  I  sentence  you  to  three  years  and 
a  half  in  State's  prison." 

In  contrast  with  those  cheerful  days  on  Man- 
hattan, not  much  over  a  century  and  a  half  ago, 
when  negroes  were  burnt  to  death  in  chains,  and 
thieves  branded  in  open  court  and  then  (tied  bare- 
back to  the  tail  of  a  cart,  whipped  at  every  street 
corner  from  the  City  Hall  to  the  Battery  and 
return,  the  following  incident  may  serve  as  a 
pleasant  reminder  of  our  progress  in  civilization: 

A  young  Irishman  of  excellent  address,  and 
employed  in  a  responsible  position  in  an  express 
company,  appropriated,  at  the  instigation  of  evil 
companions,  some  of  the  funds  intrusted  to  his 
keeping.  The  larceny  was  detected,  he  was  ar- 

356 


The  Sentence 

rested  and  admitted  his  guilt.  Meantime,  some 
one  kad  written  to  his  parents  in  Ireland  who 
lived  in  a  remote  parish  in  the  humblest  circum- 
stances. The  two  old  people  sold  their  little 
cottage,  as  well  as  their  pig  and  cow,  and  took 
steerage  passage  from  Queenstown  to  New 
York.  They  arrived  upon  the  day  set  for  their 
son's  sentence,  entering  the  court-room  as  he  was 
arraigned  at  the  bar.  A  tearful  recognition  fol- 
lowed, and  the  prisoner,  overwhelmed  at  this 
touching  proof  of  his  parents'  love,  begged  the 
judge  to  listen  to  their  supplication  for  mercy. 
Their  simple  story  deeply  affected  the  court,  who 
discharged  the  defendant  in  their  keeping,  under 
his  solemn  promise  to  return  with  them  to  Ire- 
land, there  to  honor  and  labor  for  them  so  long 
as  they  should  live. 


357 


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384976 


Train,   A.C. 

Prisoner  at  the 
bar. 


LIBRARY 

UNIVERSITY   OF    CALIFORNIA 
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